United States v. Juvenile ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30290
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00054-SEH
JUVENILE MALE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
April 7, 2008—Seattle, Washington
Filed September 10, 2009
Before: Stephen Reinhardt, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Reinhardt
13109
13132 UNITED STATES v. JUVENILE MALE
COUNSEL
Anthony R. Gallagher, Federal Defender, District of Montana,
for the defendant-appellant.
William W. Mercer, United States Attorney; Richard A. Hos-
ley, United States Attorney, for the plaintiff-appellee United
States of America.
UNITED STATES v. JUVENILE MALE 13133
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, histori-
cally, been rehabilitation rather than retribution. Juvenile pro-
ceedings 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 treat-
ment 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 puni-
tive 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 delin-
quency proceeding.”) with Smith v. Doe, 538 U.S. 84, 99
(2003) (“[O]ur criminal law tradition insists on public indict-
ment, public trial, and public imposition of sentence.”).
In a surge of national concern, however, over the commis-
sion of sex offenses, particularly those against children, Con-
gress in 2006 enacted the Sex Offender Registration and
Notification Act (“SORNA” or “the Act”) and applied its reg-
istration 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, exercis-
ing 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).
13134 UNITED STATES v. JUVENILE MALE
The retroactive application of SORNA’s juvenile registra-
tion 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 com-
munities 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 commis-
sion 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 disadvan-
tages 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 con-
clude that the retroactive application of SORNA’s provisions
1
For ease of reference, we will refer in this opinion to the individuals
affected by the retroactivity provision as “former juvenile offenders.”
UNITED STATES v. JUVENILE MALE 13135
to former juvenile offenders is punitive and, therefore, unconsti-
tutional.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 regis-
ter as a sex offender. S.E. completed his two-year confine-
ment and moved to a prerelease center where, pursuant to the
terms of his sentence, he was to reside for six months. When
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 vio-
lates procedural due process, substantive due process, and the nondelega-
tion doctrine.
3
Due to the age of the victim, any sexual act is deemed non-consensual
and criminal. Without specifying any requisite degree of force, or any age
differential between the perpetrator and the victim, 18 U.S.C. § 2241(c)
defines “knowingly engag[ing] in a sexual act with another person who
has not attained the age of 12 years” as aggravated sexual abuse. Addition-
ally, under SORNA,”[a]n offense involving consensual sexual conduct is
not a sex offense for the purposes of [SORNA] . . . if the victim was at
least 13 years old and the offender was not more than 4 years older than
the victim.” 42 U.S.C. § 16911(5)(C). Consensual conduct involving a
child younger than 13 is, therefore, a sex offense, regardless of the age of
the individual accused of wrongdoing.
13136 UNITED STATES v. JUVENILE MALE
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 contin-
ued supervision until S.E.’s twenty-first birthday. The judge
also imposed a “special condition” mandating that S.E. regis-
ter 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 Constitu-
tion bars the retroactive application of the registration provi-
sion 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, 1038 (9th Cir.
2006) (questions of statutory interpretation); Hunter v. Ayers,
336 F.3d 1007, 1011 (9th Cir. 2003) (violations of the Ex Post
Facto Clause), we hold that SORNA’s juvenile registration
provision may not be applied retroactively to individuals adju-
dicated delinquent under the Federal Juvenile Delinquency
Act, and we reverse the directive that S.E. must register under
the Act.4
4
SORNA also requires all individuals convicted of qualifying offenses
under state law to register as sex offenders. See 42 U.S.C. § 16911(6). The
effect of this requirement upon former juvenile offenders varies state by
state, in light of preexisting law. Because this appeal concerns the effects
of SORNA upon an individual adjudicated delinquent under the FJDA, we
limit our discussion to individuals adjudicated delinquent in the federal
system. We do not express any opinion regarding the constitutionality of
SORNA’s registration requirements vis-a-vis individuals adjudicated
delinquent in any particular state juvenile proceedings.
UNITED STATES v. JUVENILE MALE 13137
II.
A. Federal Juvenile Delinquency Act (“FJDA”)
The Federal Juvenile Delinquency Act (“FJDA”) sets forth
the procedures governing federal juvenile adjudications. 18
U.S.C. § 5031 et seq. “The purpose of the FJDA is to ‘remove
juveniles from the ordinary criminal process in order to avoid
the stigma of a prior criminal conviction and to encourage
treatment and rehabilitation.’ ” United States v. Doe, 94 F.3d
532, 536 (9th Cir. 1996) (internal citation omitted); see also
In re Sealed Case (Juvenile Transfer), 893 F.2d 363, 367
(D.C. Cir. 1990) (noting that the FJDA’s “underlying purpose
is to rehabilitate, not to punish, so as ‘to assist youths in
becoming productive members of our society’ ”) (quoting
S.Rep. No. 1011, 93d Cong., 2d Sess. 22 U.S.Code Cong. &
Admin. News 1974 p. 1267 (1974)). The FJDA, accordingly,
provides that information about juvenile delinquency proceed-
ings “shall be safeguarded from disclosure to unauthorized
persons.” 18 U.S.C. § 5038(a). This ensures that “a juvenile
delinquent for whom there is some hope of rehabilitation
[does] not receive the stigma of a criminal record that would
attach to him throughout his life.” United States v. Three
Juveniles, 61 F.3d 86, 88 (1st Cir. 1995) (quoting S.Rep. No.
1989, 75th Cong., 3d Sess. 1 (1938)). “The confidentiality
provisions of the Act are therefore quite essential to the Act’s
statutory scheme and overarching rehabilitative purpose.”
Three Juveniles, 61 F.3d at 88. Such provisions include,
among other things, the mandate that “neither the name nor
picture of any juvenile shall be made public in connection
with a juvenile delinquency proceeding.” 18 U.S.C. § 5038.
Although the FJDA specifies limited circumstances in which
records about juvenile delinquency proceedings may be
released to certain officials for law enforcement, judicial, or
treatment purposes, it mandates that information from delin-
quency proceedings “may not be released when the request
for information is related to an application for employment
. . . or any civil right or privilege.” Id.
13138 UNITED STATES v. JUVENILE MALE
B. Sex Offender Registration and Notification Act
(“SORNA”)
On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act, 42 U.S.C. § 16901 et seq., which
includes the Sex Offender Registration and Notification Act
(“SORNA”). SORNA was enacted “[i]n order to protect the
public from sex offenders and offenders against children, and
in response to the vicious attacks by violent predators” against
seventeen named victims of sex crimes. 42 U.S.C. § 16901.
SORNA “establishes a comprehensive national system for the
registration of [sex] offenders,” id., and requires anyone con-
victed of specified crimes, including aggravated sexual abuse,
to register with the national sex offender registry. 42 U.S.C.
§ 16911(4)(A)(i). SORNA defines convictions to include
juvenile delinquency adjudications of aggravated sexual abuse
if the offender is fourteen years of age or older at the time of
the offense. 42 U.S.C. § 16911(8).
Congress delegated to the Attorney General the decision
whether SORNA should apply retroactively to sex offenders
who were convicted before the statute’s effective date. 42
U.S.C. § 16913(d). Congress gave the Attorney General no
instruction regarding whether SORNA should apply retroac-
tively or not, and certainly gave no indication to the Attorney
General that if applied retroactively to adults, it should be so
applied to juveniles as well. Exercising the delegated author-
ity, the Attorney General promulgated a regulation that ren-
ders SORNA applicable to “all sex offenders, including sex
offenders convicted of the offense for which registration is
required prior to the enactment of that Act.” 28 C.F.R. § 72.3
(2007). The regulation went into effect immediately as an
interim rule, without providing for a notice and comment
period in advance of SORNA’s retroactive application. Office
of the Attorney General, Applicability of the Sex Offender
Registration and Notification Act, 72 Fed. Reg. 8894-01,
8896-97 (Feb. 28, 2007). The regulation contains no excep-
tion for persons adjudged juvenile delinquents, and it does not
UNITED STATES v. JUVENILE MALE 13139
appear that the Attorney General considered any such excep-
tion. Indeed, there is no indication that the Attorney General,
in determining the scope of SORNA’s retroactivity, gave any
consideration at all to the special circumstances of juveniles
who had been adjudicated delinquent under a different — and
largely confidential — judicial system, or to the societal costs
versus benefits of applying SORNA’s juvenile registration
requirement retroactively. See generally 72 Fed. Reg. 8894-
01.
III.
[1] A statute or regulation that imposes retroactive punish-
ment violates the constitutional prohibition on the passage of
ex post facto laws. U.S. Const. Art. I § 9, cl. 3; Doe, 538 U.S.
at 92. The application of SORNA, enacted in 2006, to S.E.,
who was found delinquent in 2005, is clearly retroactive. See
28 C.F.R. § 72.3 (applying SORNA “to all sex offenders,
including sex offenders convicted of the offense for which
registration is required prior to the enactment of that Act”).
[2] The question we must answer then is whether the appli-
cation of SORNA’s juvenile registration provision is punitive.
If the intention of the legislature was to impose pun-
ishment, that ends the inquiry. If, however, the inten-
tion was to enact a regulatory scheme that is civil
and nonpunitive, we must further examine whether
the statutory scheme is so punitive either in purpose
or effect as to negate [Congress’s] intention to deem
it ‘civil.’
Doe, 538 U.S. at 92 (internal citations and quotation marks
omitted). S.E. has properly not disputed that in enacting
SORNA, Congress intended to establish a civil regulatory
scheme rather than a criminal one. We must then inquire
whether SORNA’s juvenile registration provision is neverthe-
less punitive because (a) its purpose is to punish or (b) its
13140 UNITED STATES v. JUVENILE MALE
effect is clearly shown to be punitive. Doe, 538 U.S. at 92-93.
Whether SORNA was passed with a punitive purpose, or
whether the Attorney General applied SORNA retroactively
in order to punish past conduct, has not been answered in our
circuit.5 Because, however, we need not answer that question
and because S.E. conceded at oral argument that Congress’s
intent was not punitive, despite arguing to the contrary in his
briefs, we will assume for the purposes of this case, without
deciding the issue, that the answer is no.
[3] Congressional intent, and even the Attorney General’s,
notwithstanding, we will find an ex post facto violation if the
effect of SORNA’s juvenile registration provision is punitive.
See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). The
Supreme Court has explained that, “[b]ecause we ordinarily
defer to the legislature’s stated intent, only the clearest proof
will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty
. . . .” Doe, 538 U.S. at 92 (citation and quotation marks omit-
ted). The requirement of “clearest proof” is not, however, a
requirement that the petitioner present evidence in the record
regarding the effects of the statute as applied to him. “Instead,
courts must evaluate the question [whether a statute is puni-
tive] by reference to a variety of factors considered in relation
to the statute on its face.” Seling v. Young, 531 U.S. 250, 262
(2001) (quotation and quotation marks omitted) (emphasis
added).
Indeed, when an individual challenges a new law, such as
SORNA was at the time this case began, it would appear to
be impossible for him to develop a record which contains the
5
Doe does not foreclose the argument that SORNA was enacted with a
punitive legislative intent, as that case considered an Alaska state law with
a different legislative history. We are not, of course, bound by district
court rulings that SORNA is regulatory and not punitive. See, e.g., United
States v. LeTourneau, 534 F. Supp. 2d 718, 721 (S.D. Tex. 2008) (finding
no ex post facto violation and citing other district court cases coming to
the same result).
UNITED STATES v. JUVENILE MALE 13141
“clearest proof” of the punitive effects that the law will have
upon him or indeed upon others. Certainly, we would not
require S.E. to suffer and then document the ill effects of
SORNA’s juvenile registration provision before permitting a
challenge to its retroactive application. We interpret the “cl-
earest proof” requirement in the only way that is sensible: that
the terms of the statute, the legal obligations it imposes, the
practical and predictable consequences of those obligations,
our societal experience in general, and the application of our
own reason and logic, establish conclusively that the statute
has a punitive effect.
In considering whether the statute has a punitive effect, we
refer to the factors first set forth in Kennedy v. Mendoza-
Martinez:
[w]hether the sanction involves an affirmative dis-
ability or restraint, whether it has historically been
regarded as a punishment, whether it comes into play
only on a finding of a scienter, whether its operation
will promote the traditional aims of punishment—
retribution and deterrence, whether the behavior to
which it applies is already a crime, whether an alter-
native purpose to which it may rationally be con-
nected is assignable for it, and whether it appears
excessive in relation to the alternative purpose
assigned.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)
(internal citations omitted). These factors, while helpful, are
“neither exhaustive nor dispositive, but are useful guide-
posts.” Doe, 538 U.S. at 97 (internal citations and quotation
marks omitted). Here, as in Doe,
[t]he factors most relevant to our analysis are
whether, in its necessary operation, the regulatory
scheme: has been regarded in our history and tradi-
tions as a punishment; imposes an affirmative dis-
13142 UNITED STATES v. JUVENILE MALE
ability or restraint; promotes the traditional aims of
punishment; has a rational connection to a nonpuni-
tive purpose; or is excessive with respect to this pur-
pose.
Id.6
[4] Before applying this legal framework, we consider the
extent to which the Supreme Court’s decision in Doe controls
the outcome of the present case. The Supreme Court in Doe
applied the Mendoza-Martinez factors and concluded that the
retroactive application of Alaska’s Sex Offender Registration
Act (“the Alaska statute”) to adult sex offenders did not have
a punitive effect, and therefore did not violate the Ex Post
Facto Clause. It would be tempting to conclude, without look-
ing carefully at the special circumstances of former juvenile
offenders, that in light of Doe, sex offender registration by its
nature does not constitute punishment. Doe does not, how-
ever, mandate that result, and the case before us presents sub-
stantially different facts and issues that significantly affect our
analysis, and which govern our understanding of how the
Constitution must be applied. For both similar and different
reasons, Doe is not dispositive of the reporting provisions.
Historically, our country has had two separate systems of
justice, one for adults and the other for juveniles. The criminal
justice system that applies to adults is fundamentally a public
6
Here, as in Doe,
The two remaining Mendoza-Martinez factors — whether the
regulation comes into play only on a finding of scienter and
whether the behavior to which it applies is already a crime — are
of little weight in this case. The regulatory scheme applies only
to past conduct, which was, and is, a crime. This is a necessary
beginning point, for recidivism is the statutory concern. The obli-
gations the statute imposes are the responsibility of registration,
a duty not predicated upon some present or repeated violation.
Id. at 105.
 UNITED STATES v. JUVENILE MALE 13143
one. We view its public nature as an essential protection for
the rights of both the defendant and society at large. As Doe
explains, “[t]ransparency is essential to maintaining public
respect for the criminal justice system, ensuring its integrity,
and protecting the rights of the accused.” Id. at 99. Our
requirement of “public indictment, public trial, and public
imposition of sentence,” id. (emphasis added), is central to
our vision of a punitive system that is fair and just.
Juvenile adjudications, by contrast, by and large take place
outside the public domain. We have historically made the
decision to shield juvenile offenders from the public eye —
both from the protections that public scrutiny provides against
government oppression, and from the burdens that public
scrutiny imposes through the stigmatization of those con-
victed of crimes. As Chief Justice, then Justice, Rehnquist
explained, “[i]t is a hallmark of our juvenile justice system in
the United States that virtually from its inception at the end
of the [nineteenth] century its proceedings have been con-
ducted outside of the public’s full gaze and the youths brought
before our juvenile courts have been shielded from publicity.”
Smith v. Daily Mail Pub. Co., 443 U.S. 97, 107 (1979) (Rehn-
quist, J., concurring). Juveniles are denied certain procedural
rights afforded to adult criminal defendants, including a pub-
lic trial by jury,7 but they are, in turn, beneficiaries of an adju-
dicatory system designed, though not always successfully, to
rehabilitate rather than punish — a system ill-suited to public
exposure. There are some exceptions to confidentiality in
juvenile proceedings, which we will describe further below.
However, our juvenile justice system from its origins was
established in order to make the child “feel that he is the
7
Due process does attach to juvenile proceedings. In re Gault, 387 U.S.
1, 30 (1967). However, there is no constitutional requirement “that juve-
nile proceedings be by indictment or jury trial.” United States v. Juvenile,
228 F.3d 987, 990 (9th Cir. 2000) (citing McKeiver v. Pennsylvania, 403
U.S. 528, 545 (1971)) (jury trial not constitutionally required in juvenile
proceeding); United States v. Indian Boy X, 565 F.2d 585, 595 (9th Cir.
1977) (indictment not required in juvenile proceeding).
13144 UNITED STATES v. JUVENILE MALE
object of [the state’s] care and solicitude,” and that he would
“be treated and rehabilitated” through “clinical” procedures
“rather than punitive” ones. Gault, 387 U.S. at 15-16. The
FJDA, which governs juvenile proceedings, is for that reason
designed “to ‘remove juveniles from the ordinary criminal
process in order to avoid the stigma of a prior criminal con-
viction and to encourage treatment and rehabilitation.’ ”
United States v. Doe, 94 F.3d at 536 (quoting United States
v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990) (citations
omitted)). Our punitive system is public; our rehabilitative
system for juveniles, quite deliberately, is not.
[5] In light of these two different systems of justice — one
public and punitive, the other largely confidential and rehabil-
itative — the impact of sex offender registration and reporting
upon former juvenile offenders and upon convicted adults dif-
fers in ways that we cannot ignore. According Doe its full
precedential weight, we are nonetheless compelled to con-
clude here that the effect of the retroactive application of
SORNA’s juvenile registration and reporting requirements is
different both in nature and degree than the retroactive appli-
cation of Alaska’s statute to adult offenders. We are also com-
pelled to conclude, for what it’s worth, that it would be a
breach of faith to those young persons, some of whom are
now elderly, who voluntarily accepted status as a juvenile
delinquent believing that their juvenile offense would not later
be made known to the world at large.
A. Affirmative disability or restraint
[6] We begin by considering whether the retroactive appli-
cation of SORNA’s juvenile registration provision “imposes
an affirmative disability or restraint.” Doe, 538 U.S. at 97. We
look to “how the effects of [SORNA’s juvenile registration
provision] are felt by those subject to it. If the disability or
restraint is minor and indirect, its effects are unlikely to be
punitive.” Id. at 99-100. Because we conclude that the retro-
active application of SORNA’s juvenile registration provision
UNITED STATES v. JUVENILE MALE 13145
imposes a disability that is neither “minor” nor “indirect,” but
rather severely damaging to former juvenile offenders’ eco-
nomic, social, psychological, and physical well-being, this
factor strongly supports a determination that the statute’s
effect is punitive.8 In fact, given the degree of damage former
juvenile offenders may suffer in their adult lives by the retro-
active application of the statutory requirement, we conclude
that this factor is by far the most compelling in our analysis.
We recognize, of course, that the Supreme Court in Doe
concluded that the retroactive application of the Alaska statute
did not impose an “affirmative disability or restraint” upon
adult sex offenders sufficient to constitute punishment. The
Court reasoned that “[t]he Act imposes no physical restraint,
and so does not resemble the punishment of imprisonment,
which is the paradigmatic affirmative disability or restraint,”
Doe, 538 U.S. at 100; that “[a]lthough the public availability
of the information may have a lasting and painful impact on
the convicted sex offender, these consequences flow not from
the Act’s registration and dissemination provisions, but from
the fact of conviction, already a matter of public record,” id.
at 100-01; that the statute did not impose an in-person regis-
tration requirement, id. at 101; and that the requirements of
registration are less onerous than the conditions of probation
and supervised release, id. The Supreme Court’s conclusion
must be understood, however, in the context of the public
criminal justice system. The burden of sex offender registra-
tion upon a former juvenile offender is substantially, and deci-
sively, different.
8
Although we conclude that SORNA imposes a severe disability, we do
not agree that SORNA “redefines a juvenile adjudication and makes it a
conviction,” as S.E. argues. For the purposes of SORNA, certain juvenile
adjudications are included within the definition of a “conviction.” SORNA
does not, however, in any other way convert a juvenile delinquency find-
ing into a conviction, and individuals who have been adjudicated delin-
quent are not felons or convicted criminals for any non-SORNA purpose.
13146 UNITED STATES v. JUVENILE MALE
The key word in our analysis is “impose.” To impose a dis-
ability is to place a disability on an individual where none
previously existed. In the Alaska case, the statute did not
impose disadvantages “that would not have otherwise
occurred.” Id. at 100. There, the stigma and disadvantages
derived “not from the Act’s registration and dissemination
provisions, but from the fact of conviction, already a matter
of public record.” Id. at 101. Doe emphasized that it would be
mere “conjecture” to conclude that the publication of sex
offenders’ information on the internet would impose a new
barrier to their ability to find employment or housing, as land-
lords and employers could already conduct background
checks and discover adult offenders’ criminal history, which
is public information. Id. at 100. The Court likened the regis-
tration and notification provisions of the Alaska statute to “a
visit to an official archive of criminal records.” Id. at 99. The
Court did not dispute that “substantial occupational or hous-
ing disadvantages” would result from the public’s awareness
of a defendant’s status as a sex offender; indeed, it noted that
“the public availability of the information may have a lasting
and painful impact on the convicted sex offender . . . .” Id. at
101. It held, however, that there was no proof that these dam-
ages “would not have otherwise occurred” as a result of the
previous availability of the same information. Id. at 100.
Here, the precise opposite is true. SORNA’s juvenile regis-
tration provision imposes all the conditions that the Supreme
Court found the Alaska statute did not impose. None of the
consequences that former juvenile offenders suffer as a result
of the retroactive application to them of SORNA were
imposed on adult offenders by virtue of the Alaska statute.
Although the information in the registry at issue in Doe was
already public knowledge, information about federal juvenile
delinquency adjudications was not. Such information is, in the
case of juveniles, ordinarily confidential and may not under
most circumstances be disclosed to employers, landlords, or
the general public. 18 U.S.C. § 5038 (“Unless otherwise
authorized by this section, information about the juvenile
UNITED STATES v. JUVENILE MALE 13147
record may not be released when the request for information
is related to an application for employment . . . or any civil
right or privilege.”).
Confidentiality in juvenile proceedings is not absolute, but
it is generally carefully protected: The norm in juvenile delin-
quency adjudications is closed proceedings and sealed records.9
Such confidentiality has historically been one of the most sig-
nificant factors differentiating juvenile adjudications, which
are designed to be rehabilitative, from adult criminal proceed-
ings, which are designed to be punitive. District judges do
have discretion to open juvenile proceedings and unseal por-
tions of the record of juvenile adjudications under the FJDA,
and disclosure to certain authorized persons for certain enu-
merated purposes is permitted. 18 U.S.C. § 5038(a). However,
judges may not expose all juvenile proceedings to public scru-
tiny as a general practice. They are charged, rather, with “the
delicate task of weighing the interests of the juvenile and the
public . . . in each case.” United States v. A.D., 28 F.3d 1353,
1361 (3rd Cir. 1994).10 Moreover, the identity and the image
of the juvenile may not be publicly disclosed even in cases in
which the proceedings are opened or some of the documents
from the case are released: The FJDA mandates that “neither
the name nor picture of any juvenile shall be made public in
connection with a juvenile delinquency proceeding.” 18
U.S.C. § 5038(e). Thus, even in those cases in which the court
decides to open the juvenile proceedings to those who wish to
attend the trial, the juvenile defendant is not generally
exposed to much more public awareness of his identity and
criminal conduct than in the ordinary instance when his trial
9
Indeed, the district judge stated on the record at S.E.’s revocation hear-
ing that “this is a juvenile proceeding. Consequently, it is closed to mem-
bers of the public.”
10
See also United States v. Eric B., 86 F.3d 869, 879 (9th Cir. 1996)
(applying the A.D. balancing test); United States v. Three Juveniles, 61
F.3d 86 (1st Cir. 1995) (adopting the Third Circuit’s approach but noting
that closed juvenile proceedings are the “norm” ).
13148 UNITED STATES v. JUVENILE MALE
is closed. It is clear that a large-scale release of juvenile
records of the magnitude authorized by SORNA, and the
ensuing public display of those records on the internet, was
prohibited under federal law as it existed prior to the passage
of SORNA, and will have a significant and adverse life-long
impact upon the individuals affected.
SORNA’s juvenile registration provision, therefore, does
not merely provide for further public access to information
already available; it makes public information about sex
offenders that would otherwise permanently remain confiden-
tial and exposes persons who were adjudicated delinquent
years before to public humiliation and ignominy for the first
time. It also seriously jeopardizes the ability of such individu-
als to obtain employment, housing, and education.11 The reg-
istration and notification system here cannot be compared to
a visit to a criminal archive, as such a visit would yield no
11
As Justice Souter explained, concurring in Doe,
[T]here is significant evidence of onerous practical effects of
being listed on a sex offender registry. See, e.g., Doe v. Pataki,
120 F.3d 1263, 1279 (2d Cir. 1997) (noting “numerous instances
in which sex offenders have suffered harm in the aftermath of
notification-ranging from public shunning, picketing, press vigils,
ostracism, loss of employment, and eviction, to threats of vio-
lence, physical attacks, and arson”); E.B. v. Verniero, 119 F.3d
1077, 1102 (3d Cir. 1997) (“The record documents that regis-
trants and their families have experienced profound humiliation
and isolation as a result of the reaction of those notified. Employ-
ment and employment opportunities have been jeopardized or
lost. Housing and housing opportunities have suffered a similar
fate. Family and other personal relationships have been destroyed
or severely strained. Retribution has been visited by private,
unlawful violence and threats and, while such incidents of ‘vigi-
lante justice’ are not common, they happen with sufficient fre-
quency and publicity that registrants justifiably live in fear of
them”); Brief for Office of the Public Defender for the State of
New Jersey et al. as Amici Curiae 7-21 (describing specific inci-
dents).
Doe, 538 U.S. at 109 n.* (Souter, J., concurring).
UNITED STATES v. JUVENILE MALE 13149
information about juvenile adjudications. The disadvantages
that flow to former juvenile offenders on account of having a
public record as sex offenders must be attributed to SORNA
alone.
Under SORNA, moreover, individuals who twenty or thirty
years ago pled true to acts of juvenile delinquency — and
who did so with the expectation that their adjudication would
remain confidential — may, decades later, be required to pub-
licly expose that information to friends, family, colleagues,
and neighbors. Indeed, most of those affected by the retroac-
tive application of SORNA’s juvenile registration provision
are not juveniles but adults. Many of these individuals have
for many years led entirely law-abiding and productive lives
that may be dramatically disrupted by the registration require-
ments. Some, had they known that they would years later be
subject to registration requirements, might not have pled true
to the charges at all.
Beyond these societal consequences of public registration
as a sex offender, SORNA imposes additional administrative
burdens in the form of “periodic in person verification.” 42
U.S.C. § 16916 (“[A] sex offender shall appear in person,
allow the jurisdiction to take a current photograph, and verify
the information in each registry in which that offender is
required to be registered.”). In upholding the retroactive appli-
cation of Alaska’s statute, the Court in Doe explicitly noted
that the statute did not mandate in-person registration. Id. at
101. Every former juvenile offender subject to SORNA, by
contrast, must register in person four times a year for at least
25 years.12 This requirement for appearances every three
12
See 42 U.S.C. § 16911(8) (applying SORNA only to juvenile offenses
comparable to, or more severe than, aggravated sexual assaults);
§ 16911(4)(A)(i) (defining aggravated sexual assaults as Tier III offenses);
§ 16915(a)(3) (providing that Tier III offenders must register for life);
§ 16915(b)(2)(B) (providing that juvenile offenders may seek a reduction
of their registration requirement after 25 years, if they keep a “clean”
record); § 169161(3) (requiring Tier III offenders to verify registration
information, in person, every three months).
13150 UNITED STATES v. JUVENILE MALE
months before law enforcement officials is neither “minor”
nor “indirect.” Doe, 538 U.S. at 99-100. Every three months,
the former juvenile offenders will be required to be absent
from work, appear before public officials, and publicly reaf-
firm that they are guilty of misdeeds that were previously pro-
tected from disclosure.13
[7] Because SORNA’s juvenile registration provision,
retroactively applied to former juvenile offenders, imposes a
serious disability by making public otherwise confidential
delinquency records relating to sexual offenses, and because
the in-person registration requirement is substantially burden-
some, SORNA’s juvenile registration provision imposes an
onerous “affirmative disability or restraint” on former juve-
nile offenders. Mendoza-Martinez, 372 U.S. at 168. As we
have already stated, this factor weighs heavily in support of
a finding that SORNA’s juvenile registration requirement has
a punitive effect. Given the severity of its burdens, it would
be difficult to reach any other conclusion.
B. Historical treatment
[8] We next consider whether requiring former juvenile sex
offenders to register and report to law enforcement regularly
is an historical means of punishment. The fact that sex
offender registration and notification statutes “are of fairly
recent origin,” Doe, 538 U.S. at 97, suggests, initially, that it
is not. Doe held that the apparent similarity between sex
offender registration and early forms of shaming punishments
is “misleading,” Id. at 98, and explained that
the stigma of Alaska’s Megan’s Law results not from
public display for ridicule and shaming but from the
dissemination of accurate information about a crimi-
13
See, e.g., Human Rights Watch, No Easy Answers: Sex Offender Laws
in the US 74 (Sept. 2007), available at http://www.hrw.org/sites/default/
files/reports/ us0907webwcover.pdf.
UNITED STATES v. JUVENILE MALE 13151
nal record, most of which is already public. Our sys-
tem does not treat dissemination of truthful
information in furtherance of a legitimate govern-
mental objective as punishment. On the contrary, our
criminal law tradition insists on public indictment,
public trial, and public imposition of sentence.
Transparency is essential to maintaining public
respect for the criminal justice system, ensuring its
integrity, and protecting the rights of the accused.
The publicity may cause adverse consequences for
the convicted defendant, running from mild personal
embarrassment to social ostracism. In contrast to the
colonial shaming punishments, however, the State
does not make the publicity and the resulting stigma
an integral part of the objective of the regulatory
scheme.
Id. at 98-99 (emphasis added). We are struck, once again, by
the vastly different situation of adult criminal defendants from
that of juvenile offenders, and of the corresponding difference
in the effect of registration upon the two groups. As Doe rec-
ognizes, adult criminal proceedings have long been a matter
of public record, and indeed the right to a public trial in all
criminal prosecutions is fundamental under our Constitution.
U.S. Const. Amend. VI. Full disclosure of the offense and the
offender is an integral part of our punitive system. The public
availability of information is not, however, a traditional part
of the rehabilitative juvenile justice system. In fact, quite the
opposite is true. A core distinguishing feature of the juvenile
justice system has historically been that juveniles are, with
certain exceptions, permanently shielded from the public eye.
The federal juvenile justice system was designed precisely in
order to “remove juveniles from the ordinary criminal process
in order to avoid the stigma of a prior criminal conviction and
to encourage treatment and rehabilitation.” Doe, 94 F.3d at
536 (quotation marks omitted).
Historically, information from juvenile adjudications has
been made public only when a juvenile’s case is transferred
13152 UNITED STATES v. JUVENILE MALE
to adult criminal court for punitive purposes. Beyond the
exceptions to confidentiality in juvenile proceedings detailed
supra in Part III.A, there are a select number of juveniles who
are prosecuted publicly. In certain circumstances, courts
transfer such cases to adult court, shifting the juvenile out of
a rehabilitative system entirely and into a punitive one. Under
federal law, courts evaluate several factors when determining
whether a juvenile will be treated as an adult, including the
prior record of the offender, his response to past treatment,
and the nature of the offense. 18 U.S.C. § 5032. Courts may
give special weight to “the heinous nature of the crime,”
United States v. Doe, 94 F.3d at 536-37, and must strike a bal-
ance “between providing a rehabilitative environment for
young offenders as well as protecting society from violent and
dangerous individuals and providing sanctions for anti-social
acts.” Id. (quoting United States v. E.K., 471 F. Supp. 924,
932 (D. Oregon 1979)). A court’s decision to send a juvenile
to adult court is thus based in part on a prediction that rehabil-
itation is improbable. See United States v. Alexander, 695
F.2d 398, 401 (9th Cir. 1982). A decision that a juvenile is
beyond rehabilitation is a decision to expose him to the puni-
tive elements of adult court, including the publication of his
criminal record.
[9] Although SORNA does not transfer a juvenile to adult
court, it does make public the record of an otherwise confi-
dential juvenile adjudication. Creating a public record of a
federal juvenile offense is something that, historically, has
been done only after the court’s determination that the juve-
nile’s case merits punishment, rather than rehabilitation. In
short, the public disclosure mandated by SORNA’s juvenile
registration provision is historically a central feature of a
punitive rather than a rehabilitative system of justice. Still, in
the end, we cannot say that this factor weighs in favor of
holding the juvenile registration and notification provisions to
be punitive in nature.
UNITED STATES v. JUVENILE MALE 13153
C. Traditional aims of punishment
[10] We turn next to whether SORNA promotes the tradi-
tional aims of punishment — in particular, the aim of retribu-
tion. See Mendoza-Martinez, 372 U.S. at 168-69. As stated
previously, we decline to rest our holding in this case on
whether SORNA was enacted with a punitive intent. Never-
theless, whether SORNA “will promote . . . retribution,” id.,
is tied to the question whether Congress enacted SORNA with
the goal of retribution in mind. In this light, we will consider
whether SORNA’s text and history suggest that the disadvan-
tages imposed are purely regulatory, or were designed, at least
in part, in order to promote the traditional aims of punish-
ment, and thus whether SORNA serves that purpose.
[11] As we do so, we are aware both of the Supreme
Court’s decision in Doe, and of the inflamed public sentiment
against sex offenders that served as the historical backdrop for
SORNA’s passage. Justice Souter, concurring in Doe, saw the
question of Alaska’s legislative intent as a close one. He
explained:
It would be naive to look no further [than to the reg-
ulatory goal of public safety], given pervasive atti-
tudes toward sex offenders. The fact that the Act
uses past crime as the touchstone, probably sweeping
in a significant number of people who pose no real
threat to the community, serves to feed suspicion
that something more than regulation of safety is
going on; when a legislature uses prior convictions
to impose burdens that outpace the law’s stated civil
aims, there is room for serious argument that the
ulterior purpose is to revisit past crimes, not prevent
future ones.
Doe, 538 U.S. at 109 (Souter, J., concurring in the judgment)
(internal citations omitted). SORNA’s legislative history sug-
gests that precisely such a retributive aim contributed to its
13154 UNITED STATES v. JUVENILE MALE
passage — and more overtly than in the “close case” of Doe.
See id. at 107. Unlike Alaska’s statute, which contained no
legislative purpose statement and was passed pursuant to leg-
islative findings that focused solely on public safety,
SORNA’s legislative purpose statement reveals an additional
goal: to respond to the heinous crimes committed by sex
offenders. SORNA was enacted “[i]n order to protect the pub-
lic from sex offenders and offenders against children, and in
response to the vicious attacks by violent predators against
the victims listed below . . . .” 42 U.S.C. § 16901 (emphasis
added). The statute subsequently lists seventeen individual
victims and details the crimes that were committed against
them, strongly suggesting that the motivation behind
SORNA’s passage was not only to protect public safety in the
future but also to “revisit past crimes.” Doe, 538 U.S. at 109
(Souter, J., concurring in the judgment). Senator Grassley’s
floor statement similarly reflects a retributive sentiment that
colored the legislative proceedings: “Child sex offenders are
the most heinous of all criminals. I can honestly tell you that
I would just as soon lock up all the child molesters and child
pornography makers and murderers in this country and throw
away the key.” 152 Cong. Rec. S8012, S8021 (daily ed. July
20, 2006) (statement of Sen. Grassley).
[12] The purpose of the Ex Post Facto Clause is to prevent
the passage of “potentially vindictive legislation.” Doe, 538
U.S. at 109 (Souter, J., concurring in the judgment) (quoting
Weaver v. Graham, 450 U.S. 24, 29 (1981)) (internal quota-
tion marks omitted). SORNA’s legislative text and history
contain substantial warning signs that its aim, while princi-
pally regulatory, to be sure, is also in some measure punitive.
D. Non-punitive purpose and excessiveness
[13] We next consider whether SORNA’s juvenile registra-
tion provision has a non-punitive purpose and, if it does,
whether the requirement is excessive in relation to that goal.
We must determine “whether the disability is imposed for the
UNITED STATES v. JUVENILE MALE 13155
purpose of punishment or whether it is but an incident of
some other legitimate governmental purpose.” Bell v. Wolfish,
441 U.S. 520, 538 (1978). If the statute is reasonably related
to a non-punitive purpose then the statute is not usually con-
sidered punitive. Id. at 539. However, it is more likely to be
punitive if it “appears excessive in relation to the alternative
purpose assigned.” Mendoza-Martinez, 372 U.S. at 169.
In Doe, the Court held that the Alaska statute had a non-
punitive purpose: improving public safety. 538 U.S. at 102.
Undeniably, SORNA, too, was enacted in order to achieve
that regulatory aim. Whether the means that it employs in
order to achieve that purpose are excessive, however, is a dis-
tinct — and a close — question. Although Doe sets a stringent
standard for excessiveness, there are valid and serious con-
cerns both with the utility and with the extreme consequences
of SORNA’s juvenile offender registration requirement that
warrant review.
On the one hand, Congress has extended SORNA’s juve-
nile registration requirement to only a portion of those who
were adjudicated delinquents: those who were “14 years of
age or older at the time of the offense and the offense adjudi-
cated was comparable to or more severe than aggravated sex-
ual abuse . . . .” 42 U.S.C. § 16911(8). There was a debate in
the Senate regarding whether SORNA should apply to juve-
niles at all, and if so to what extent. The result appears to have
been a compromise.14
14
Ranking Judiciary Committee member Senator Leahy explained,
This bill correctly allows the States, in many cases, to use their
expertise—and they know more about these issues than we do
here in Washington—to decide which juveniles should be on sex
offender registries, to what extent, and for how long. It also
appropriately requires the States to include the most egregious
juvenile offenders, who do represent a threat to others, on their
sex offender registries. I think the bill goes too far in a few cases
in limiting States’ discretion to determine which juveniles should
13156 UNITED STATES v. JUVENILE MALE
[14] On the other hand, even compromises may be exces-
sively harsh. Given the low risk that former juvenile sex
offenders pose to public safety and the lifetime confidentiality
that most former juveniles would otherwise enjoy, retroac-
tively applying SORNA’s juvenile registration provision is an
exceptionally severe means of achieving the statute’s non-
punitive goal.
In Doe, the Supreme Court held that the sex offender regis-
tration requirement was not excessive in light of its regulatory
purpose, in part because sex offenders have a “high rate of
recidivism,” are dangerous “as a class,” pose a danger to the
public that is “frightening and high,” and “are much more
likely than any other type of offender to be rearrested for a
new rape or sexual assault.” 538 U.S. at 103 (citations omitted).15
be placed on registries and to allow those juvenile offenders who
have lived cleanly and turned their lives around to get off of reg-
istries. But overall, this bill strikes an acceptable balance on this
issue, and I am glad that those of us who were concerned about
appropriate deference to the expertise of the States spoke out and
were heard to some extent.
152 Cong. Rec. S8012-02, S8027 (daily ed. July 20, 2006) (statement of
Sen. Leahy).
15
Justice Ginsburg strongly disagreed:
What ultimately tips the balance for me is the Act’s excessive-
ness in relation to its nonpunitive purpose. . . . [T]he Act has a
legitimate civil purpose: to promote public safety by alerting the
public to potentially recidivist sex offenders in the community.
But its scope notably exceeds this purpose. The Act applies to all
convicted sex offenders, without regard to their future dangerous-
ness. And the duration of the reporting requirement is keyed not
to any determination of a particular offender’s risk of reoffend-
ing, but to whether the offense of conviction qualified as aggra-
vated. The reporting requirements themselves are exorbitant: The
Act requires aggravated offenders to engage in perpetual quar-
terly reporting, even if their personal information has not
changed. And meriting heaviest weight in my judgment, the Act
makes no provision whatever for the possibility of rehabilitation:
UNITED STATES v. JUVENILE MALE 13157
There is no evidence, however, that the “high rate of recidi-
vism” at issue in Doe is shared by juvenile offenders. Studies
cited in the legislative history of this bill indicate that the
recidivism rates for juvenile offenders are significantly lower
than for adult offenders. See 152 Cong. Rec. S8012-02, S8023
(daily ed. July 20, 2006) (statement of Sen. Kennedy) (“For
juveniles, the public notification provision in this bill is harsh
given their low rate of recidivism, which is less than 8 percent
according to the most recent studies.”); Coalition for Juvenile
Justice, Comments in Opposition to Interim Rule RIN 1.105
—AB22, 3 (2007) (citing study showing 5 to 14% recidivism
rate for juveniles, as compared to 40% rate of recidivism for
adults); Human Rights Watch, supra, at 69-70 (listing studies
finding low recidivism rates among juvenile sex offenders).
Research suggests, moreover, that only a small portion of
adult sex offenders previously committed sex offenses as
juveniles. See Human Rights Watch at 70.
These statistics are not surprising. Juveniles are as a general
matter less mature, more impulsive, and more confused about
sexually appropriate behavior than adults. They do not under-
stand their sexual drives as well or know how to deal with
them. We do not, of course, excuse such conduct as mere
juvenile exuberance. We simply recognize that the predictive
value of an individual’s conduct, especially sexual conduct, at
the age of fourteen or fifteen is, under most circumstances,
limited. For that reason, requiring former juvenile sex offend-
ers to register as such many decades thereafter will often not
Offenders cannot shorten their registration or notification period,
even on the clearest demonstration of rehabilitation or conclusive
proof of physical incapacitation. However plain it may be that a
former sex offender currently poses no threat of recidivism, he
will remain subject to long-term monitoring and inescapable
humiliation.
Doe, 538 U.S. at 116-17 (2003) (Ginsburg, J., dissenting) (citations and
footnote omitted).
13158 UNITED STATES v. JUVENILE MALE
only be unnecessary to secure the safety of the community but
may even be counterproductive.
It is worth noting that, in practice, those who are primarily
affected by SORNA’s retroactive application to former juve-
nile offenders are not the most likely to recidivate — they are,
rather, those adults who are forced to register solely because
they committed an offense as a juvenile, but who have lived
the rest of their adult lives without committing another such
crime. Adults who re-offended in the past after their initial
juvenile offense are required to register in any event by
SORNA’s retroactive application to adult sex offenders, and
adults who re-offend in the future are required to register by
SORNA’s basic provisions.
In addition to the personal toll on those who are labeled as
sex offenders, registration of former juvenile offenders under-
mines the rehabilitative goals of our juvenile justice system as
a whole, and derails the historical effort to avoid permanently
or publicly stigmatizing juveniles as criminals. It may also
seriously affect the lives of the spouses and children of these
former juvenile sexual offenders. Sacrificing confidentiality
and lessening the chance of rehabilitation for former juvenile
sex offenders who have not re-offended are severe measures
to aid in achieving public safety, in light of the importance of
the contravening interests and the relatively low risk that such
offenders pose to the community. Indeed, the severity of the
measures may well increase the risk of recidivism within a
population that otherwise has the greatest potential for reha-
bilitation.
[15] Notwithstanding all this, we recognize that “[t]he
excessiveness inquiry of our ex post facto jurisprudence is not
an exercise in determining whether the legislature has made
the best choice possible to address the problem it seeks to
remedy. The question is whether the regulatory means chosen
are reasonable in light of the non-punitive objective.” Doe,
538 U.S. at 105. Whether that test has been met here is a close
UNITED STATES v. JUVENILE MALE 13159
and difficult question. To us, SORNA’s effect on former juve-
nile offenders does “appear[ ] excessive in relation to the
[non-punitive] purpose assigned.” Mendoza-Martinez, 372
U.S. at 169. Recognizing the limited nature of our inquiry,
however, as well as the Supreme Court’s decision in Doe, we
will not give much weight either way to this factor in making
our ultimate determination.
IV.
[16] The retroactive application of SORNA’s provision
requiring registration and reporting by former juvenile offend-
ers imposes immense burdens, not only through onerous in-
person registration and reporting requirements, but, more
important, through the publication and dissemination of
highly prejudicial juvenile adjudication records of individuals
who have committed no offenses since their adolescence —
records that would otherwise remain sealed. The juvenile reg-
istration requirement, for the first time under federal law,
exposes thousands of former juvenile offenders to public
notoriety and subjects them to lifetime condemnation and
ostracism by their community. The effects of this exposure
are wide-ranging, and likely include serious housing, employ-
ment, and educational disadvantages. Unlike in Doe, for for-
mer juvenile offenders generally these effects are solely
attributable to SORNA. The publicity that once juvenile
offenders, now law abiding adults, face is, moreover, some-
thing that has traditionally attached to juvenile offenders only
if they are transferred to an adult — and punitive — system.
Historically, public exposure constitutes an integral part of a
punitive and not a juvenile or rehabilitative regime. Addition-
ally, while it is indisputable that SORNA was enacted as a
regulatory measure in order to promote public safety, there is
evidence that this non-punitive aim was mixed to some degree
with a less evident desire for retribution as well. Finally,
imposing the burdens of registration upon former juvenile
offenders is a harsh measure in view of the low rate of recidi-
vism for juvenile offenders and the importance of the counter-
13160 UNITED STATES v. JUVENILE MALE
vailing goal of rehabilitation; it is a close question, however,
whether it is excessive in light of Congress’s non-punitive
objectives. All this, of course, is in addition to the onerous
requirement that these former juvenile offenders report in per-
son every three months to law enforcement authorities for a
large portion of their adult lives.
[17] Although we are not bound by the Mendoza-Martinez
factors, they prove useful to our analysis in this case. Taken
together, they provide “the clearest proof,” Kansas v. Hen-
dricks, 521 U.S. 346, 361 (1997), that the effect of the Attor-
ney General’s regulation that retroactively imposes SORNA’s
juvenile registration and reporting requirement upon former
juvenile offenders who were found delinquent prior to the
passage of the statute, is punitive. Of this, we are fully per-
suaded. The requirement serves to convert a rehabilitative
judicial proceeding, sheltered from the public eye, into a puni-
tive one, exposed for all to see, and with long-lasting substan-
tially adverse and harsh effects. In some instances, the
retroactive implementation of SORNA’s provisions will most
certainly wreak havoc upon the lives of those whose conduct
as juveniles offended the fundamental values of our society
but who, we hope, have been rehabilitated. For these reasons,
we conclude that the retroactive application of SORNA’s
juvenile registration and reporting requirement violates the Ex
Post Facto Clause of the United States Constitution.16 We
16
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. In any event, George was required to
register as a sex offender as a condition of his pre-SORNA plea agree-
ment. George argued that his failure to register was a one-time event that
took place before SORNA took effect, and therefore his conviction for
UNITED STATES v. JUVENILE MALE 13161
therefore VACATE the part of the judgment order that per-
tains to registration and reporting as a sex offender, and hold
that S.E. may not constitutionally be obligated to register as
a sex offender under SORNA.
VACATED in part and REMANDED in part.
violating SORNA amounted to an unconstitutional retrospective applica-
tion of a criminal law. We held otherwise, stating, inter alia, that George
was under a “continuing obligation to register” under SORNA and that
failure to register is a continuing offense. George, 2009 WL 2591677 at
*4-*5. As such, 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.