State v. J. J. L. , 323 Or. App. 136 ( 2022 )

136
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted September 28, affirmed December 7, 2022
In the Matter of J. J. L.,
a Youth.
STATE OF OREGON,
Respondent,
v.
J. J. L.,
Appellant.
Douglas County Circuit Court
15JU00769; A176313
Frances Elaine Burge, Judge.
Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed. State v. A. L. M., 305 Or App 389, 399, 469 P3d
244, rev den, 367 Or 218 (2020).
Egan, J., concurring.
Nonprecedential Memo Op: 323 Or App 136 (2022) 137
EGAN, J., concurring.
In 2015, when J was a 13-year-old child, he admit-
ted that he had committed acts that, if he were an adult,
would constitute second-degree rape under ORS 163.365—
viz., sexual contact with his then seven-year-old half-sister.
I would be remiss if I did not acknowledge the devastating
and lifelong effect that J’s conduct had on his sister. My con-
currence is not meant to diminish those effects. I write only
to point out that both the victim and the perpetrator were
children at the time of the offense and, as explained below,
the issue decided by the juvenile court in this case concerns
J’s future.
Over the six years following J’s admission, J engaged
in sex-offender treatment, took responsibility for his con-
duct, matured, improved his self-control, and, most impor-
tantly, did not reoffend.
In 2020 and 2021, the juvenile court held hearings
pursuant to ORS 163A.030 on the question of whether J—
who was then aging out of the jurisdiction of the juvenile
court and embarking upon adulthood—should be required
to register as a sex offender pursuant to ORS 163A.025. At
those hearings, J had the burden of proving “by clear and
convincing evidence” that he was “rehabilitated and does not
pose a threat to the safety of the public.” ORS 163A.030(7)(b).
That is, he had the burden of proving by clear and convinc-
ing evidence that, in the future, his conduct would not endan-
ger the public. State v. A. R. H., 314 Or App 672, 679, 499
P3d 851 (2021), rev allowed, 369 Or 504 (2022) (Aoyagi, J.,
concurring) (noting that the standard under ORS 163A.030
is “forward looking”); State v. N. A. P., 216 Or App 432, 437,
173 P3d 1251 (2007) (“The clear and convincing evidence
standard of proof requires evidence that is of extraordinary
persuasiveness, so that the fact at issue is highly probable.”
(Internal quotations marks omitted.)).
Perhaps unsurprisingly, given that standard of
proof, the juvenile court held that J—who was then two
months shy of his 20th birthday—had not met his burden
and ordered J to register as a sex offender pursuant to
ORS 163A.025. That ruling subjected J to a multitude of
reporting requirements; exposed J to criminal liability for
138 State v. J. J. L.
violating those reporting requirements; and, the weight of
empirical studies suggests, did not make our communities
any safer.
I must concur with the majority’s disposition in
this case, because the juvenile court judge correctly inter-
preted the burden of proof imposed by ORS 163A.030, and
this court’s standard of review dictates that we affirm.
A. R. H., 314 Or App at 678 (“[I]t will perhaps be rare that
we reverse a juvenile court that has determined that a youth
failed to meet the youth’s burden under ORS 163A.030
(7)(b).”). I write because I am deeply troubled by the appli-
cation of such a high standard of proof—coupled with our
standard of review—to a person who offended at age 13, who
has demonstrated adherence to his treatment plan, who has
taken responsibility for his conduct, who has not reoffended,
and who—the research indicates—is highly unlikely to
offend in the future.
Rather than outlining the details of J’s progress,
the faith in his recovery and rehabilitation attested to by
his treatment providers, or his turbulent childhood, this
concurrence will simply explain the problem with the “clear
and convincing” standard of proof (as coupled with the stan-
dard of review that that standard of proof requires on appel-
late review). I do so because the result in this case is not
dictated by J’s conduct after being adjudicated to be within
the jurisdiction of the juvenile court or our interpretation of
ORS 163A.030: It is dictated by the “clear and convincing”
standard imposed by ORS 163A.030 itself.
I. THE MYTH
To understand the problem with application of the
“clear and convincing” standard as applied to those who
offended as juveniles, it is important to understand that our
scheme for juvenile sex offender registration is based on a
myth—viz., that recidivism rates among sexual offenders
are “frightening and high.” See McKune v. Lile, 536 US 24,
33-34, 122 S Ct 2017, 153 L Ed 2d 47 (2002) (characteriz-
ing recidivism rates among sexual offenders as “frightening
and high”). Decades of research have shown that, particu-
larly with regard to juvenile offenders, recidivism rates are
anything but high. See, e.g., Michel F. Caldwell, Quantifying
Nonprecedential Memo Op: 323 Or App 136 (2022) 139
the Decline in Juvenile Sexual Recidivism Rates, 22 Psychol
Pub Pol’y & L 414, 416-17 (2016) (studies on juvenile reof-
fending conducted from 2001 to 2015 reported an average
sexual recidivism rate of just 2.75 percent over five years,
most occurring within the first two to three years); see also
Michael F. Caldwell & Brendan M. Caldwell, The Age of
Redemption for Adolescents Who Were Adjudicated for Sexual
Misconduct, 28 Psychol Pub Pol’y & L 167 (2022) (demon-
strating the risk of a future sexual-offense charge for sex-
offense adjudicated youth declined rapidly with age, to a level
that was not significantly higher than youth adjudicated for
nonsexual offenses by age 18). Further, research demon-
strates that youth adjudicated for sexual offenses respond
well to treatment. See, e.g., Lorraine R. Reitzel & Joyce L.
Carbonell, The Effectiveness of Sexual Offender Treatment
for Juveniles as Measured by Recidivism: A Meta-Analysis,
18 Sexual Abuse 401 (2006) (a summary of nine studies on
juvenile sexual offender treatment effectiveness indicated a
statistically significant effect of treatment on sexual recidi-
vism). And research shows that juveniles who sexually offend
differ from their adult counterparts in important ways. See,
e.g., Elizabeth J. Letourneau & Michael H. Miner, Juvenile
Sex Offenders: A Case against the Legal and Clinical Status
Quo, 17 Sexual Abuse 293, 296-300 (2005) (available data
does not support an assumption that juvenile sex offenders
have more in common with adult sex offenders than with
other types of juvenile offenders).
But the myth that, writ large, recidivism among
those convicted of sex crimes is “frightening and high” has
taken hold in our legal system. As highlighted by New York
Times reporting, the United States Supreme Court contin-
ues to endorse that myth in its decision-making. See Adam
Liptak, Did the Supreme Court Base a Ruling on a Myth,
NY Times (Mar 6, 2017), https://www.nytimes.com‌/2017/
03/06/us/politics/supreme-court-repeat-sex-offenders.html
(accessed Oct 31, 2022). Equally troubling, over 100 lower
court decisions have relied on the language regarding recid-
ivism rates being “frightening and high” in McKune, and
a subsequent Supreme Court case citing McKune, Smith
v. Doe, 538 US 84, 103, 123 S Ct 1140, 155 L Ed 2d 164(2003), many to justify the banishment of registered sex
140 State v. J. J. L.
offenders—including those who offended as juveniles—from
some of the most basic aspects of day-to-day life. Even today,
against the weight of decades of research, lawyers still cite
the myth that Justice Kennedy offered as fact in McKune
and Smith.
Of course, the myth is not just taken as fact by many
courts. Popular media is awash with stories regarding sex
offenders that, understandably, stir an emotional response
in the public, but do not portray accurate information
regarding recidivism rates for sex offenders. In September
2013, for example, The Oregonian published an inflamma-
tory editorial indicating that registration of sex offenders in
Oregon should be a “top Oregon priority” because, until it is,
“it is not unreasonable to expect sex offenders from else-
where [to move] to Oregon,” with the “under-the-radar”
offenders being “scariest of all,” and further explaining
that “[n]obody wants a dangerous creep living down the
hall or across the street.” Editorial Board, Accounting for
sex offenders should be a top Oregon priority, The Oregonian
(Oct 8, 2013), https://www.oregon‌live‌.com/case/p2013/10/
accounting_for_sex_offenders_s.html (accessed Oct 31, 2022).1
In 2017, broadcast media in Portland led with a story that
“[t]housands of sex offenders” were “out of compliance” and
that “Oregon now has the most sex offenders per capita in
the U. S. according to the National Center for Missing and
Exploited Children.” Thousands of sex offenders out of com-
pliance, kept off public database in Oregon, KATU 2 News
Broadcast (Aug 1, 2016), https://katu.com/archive/thousands-
of-sex-offenders-out-of-compliance-kept-off-public-database-
in-oregon (accessed Oct 31, 2022). Such eye-catching news
stories, and the narrations of particularly heinous sexual
offenses that often accompany them, frequently do not
take into account the wide variety of offenses that qualify
for registration from state to state; they do not take into
1
As discussed below, the research is clear sex offender registries—at least
with regard to juveniles—do not decrease recidivism. Interestingly, while calling
for sex offender registration to be a “top Oregon priority,” the editorial in The
Oregonian also noted that the Government Accountability Office wrote that “an
overview of [studies of the impact of sex offender registries] ‘found no clear effect
on recidivism, for either sex offenses or other types of crime that sex offenders
commit.’ ” Editorial Board, Accounting for sex offenders should be a top Oregon
priority, The Oregonian (Oct 8, 2013).
Nonprecedential Memo Op: 323 Or App 136 (2022) 141
account the varying periods of registration from state to
state; they do not take into account the variations in regis-
tration of youths among the states; and they do not distin-
guish between those who offend as juveniles and those who
offend as adults. Such news stories often perniciously serve
to reinforce a false notion that a stranger—rather than
someone known to the victim—is likely to be the perpetra-
tor of a sexual assault. See, e.g., Sarah W. Craun & Matthew
T. Theriot, Misperceptions of Sex Offender Perpetration, 24 J
of Interpersonal Violence 2057, 2057-58 (2009) (noting that
misconception, as well as that, “[a]mong sexual abuse cases
reported to law enforcement, less than 5 [percent] involved
perpetrators who were characterized as strangers”).
Nationally, our laws regarding sex offenders devel-
oped as a result of such lore thereby cloaking the myth
in the legitimacy of both our legal system and our policy-
making bodies: In the early 1990s, legislators around the
country rushed to address the burgeoning phenomenon of
widely reported sex crimes with the passage of laws named
after specific children and based on anecdotal evidence.
The United States Congress and state legislative assem-
blies passed laws named after victims of the worst, most
highly publicized, and comparatively rare type of crimes
against children, like “Megan’s Law,” the “Adam Walsh
Child Protection and Safety Act,” and the “Jacob Wetterling
Crimes Against Children and Sexual Violent Offender
Registration Act,” the latter of which mandated that states
maintain sex offender registries.
That is the backdrop against which Oregon’s sex-
ual offender reporting statutes (SORS) developed, though
Oregon’s SORS did not start that way.
II. OREGON’S SORS
Oregon’s original SORS, enacted in 1989, were
designed to track statistics on recidivism and aid law
enforcement officials in tracking known sexual offenders.
They were not intended to be punitive, and compliance was
relatively straightforward: They applied to a limited number
of particularly heinous, serious sex crimes—viz., rape, sod-
omy, sexual penetration with a foreign object, sexual abuse,
or any attempt to commit any of those crimes; registration
142 State v. J. J. L.
began upon the release of an offender on parole or when the
court sentenced an offender to a term of probation; the regis-
tration requirement lasted for only five years; there were no
criminal penalties for failure to register; registration was
required only when the offender changed residences; and
registration could be completed by mail.2 Oregon’s original
SORS was organized in ORS chapter 181, which related to
executive crime reporting functions.
At that time, the frequency and length of registra-
tion required by Oregon’s SORS followed the data found in
contemporaneous literature, which reflected relatively low
recidivism.
Over the ensuing decades, however, following the
national trend, Oregon’s SORS shifted from their roots as
statutes designed to track statistics on recidivism and aid
law enforcement officials in tracking known sexual offend-
ers, and became a punitive measure for offenders, both adult
and juvenile.
More specifically, over the ensuing decades, Oregon’s
SORS adopted the inclusion of juveniles in the definition
of “predatory sex offenders”;3 the length of time offenders,
including juvenile offenders, were required to register under
the SORS changed from a maximum of five years to a life-
time with the right to petition for relief after 10 years for
sex offenses committed as a minor;4 all failures to register
became punishable as misdemeanors and felonies;5 the time
periods for registration shrunk from 30 days to 10 days;6
and the list of crimes requiring registration expanded to
include over 20 crimes (or attempt to commit those crimes),
including “sexual abuse of an animal.”7 Finally, Oregon’s
SORS changed to comply with all-encompassing federal
legislation.8
2
Or Laws 1989, ch 984, §§ 1-3.
3
Or Laws 1995, ch 422, §§ 62, 62a.
4
Or Laws 1995, ch 422, § 63.
5
Or Laws 1997, ch 538, § 6.
6
Or Laws 1997, ch 538, §§ 3, 5.
7
ORS 163A.005.
8
34 USC chapter 209 sets forth the current “comprehensive national sys-
tem” for the registration of “sex offenders and offenders against children.” 34
Nonprecedential Memo Op: 323 Or App 136 (2022) 143
In addition to increasing the penalties for fail-
ure to register, since 1989, the legislature has increased
the number of registration events. Presently, under ORS
163A.025, those who offended as juveniles and are on the
sex offender registry must register by reporting in person
“to the Department of State Police, a city police department
or a county sheriff’s office, in the county of the person’s last
reported residence” within 10 days of a change of residence;
within 10 days of a legal change of name; once each year
within 10 days of the person’s birth date; within 10 days of
the first day the person works at, carries on a vocation at or
attends an institution of higher education; within 10 days of
a change in work, vocation or attendance status at an insti-
tution of higher education; and at least 21 days prior to any
intended travel outside of the United States.9
As the number of registration events under Oregon’s
SORS increased, the chances of successful compliance with
Oregon’s SORS decreased, and the risk of failure to register
(and suffering concomitant criminal penalties) increased.
Further, registration is now supervised by the Department
of State Police.10
In 2015, the legislature renumbered Oregon’s SORS
and moved them from ORS chapter 181 to the criminal stat-
utes in ORS chapter 163A. Twenty-five years after its incep-
tion, lawmakers finally and officially designated Oregon’s
SORS as a punitive law.
The operation of ORS chapter ORS 163A clearly
illustrates the punitive nature of Oregon’s SORS. Under that
chapter, all children adjudicated as juveniles or prosecuted
as adults under ORS 137.707 (Measure 11) for sex offenses
are required to register for their lifetime, unless they qual-
ify for special relief from the juvenile court or otherwise
USC § 20901. Under 34 USC section 20927(a), any jurisdiction that fails “to sub-
stantially implement” the requirements of the federal Sex Offender Registration
and Notification Act “shall not receive 10 percent of the funds that would other-
wise be allocated for that fiscal year to the jurisdiction” under the Edward Byrne
Memorial Justice Assistance Grant Program. Thus, the federal government has
provided a financial incentive for states to implement SORS, in effect, monetizing
them.
9
ORS 163A.025(3).
10
ORS 163A.045.
144 State v. J. J. L.
qualify for relief as adults. Whether under Measure 11 or
under the jurisdiction of the juvenile courts, those children
are under the same punitive measure of misdemeanor and
felony convictions if they fail to register or fail to meet one of
the intricate arrays of registration requirements. Yet, under
Oregon law, the purpose of Oregon’s SORS “is to assist law
enforcement agencies in preventing future sex offenses.”
ORS 163A.045. The only logical conclusion to be drawn is
that the recidivism rate for sex offenders is so “frightening
and high” that the only real solution is to lock people up who
have committed sexual offenses in the past—whether they
were children at the time or not—for status violations. But,
as discussed above, that logic is premised on a myth.
III. THE PROBLEM WITH THE
PUNITIVE APPROACH
The problem with the punitive approach taken by
Oregon’s SORS, at least with regard to juveniles, is both
that it does not make our communities safer and does harm
to adjudicated youth.
A. Community Safety
With regard to community safety, Professor
Elizabeth J. Letourneau—now director of the Moore Center
for the Prevention of Child Sexual Abuse at Johns Hopkins
University—succinctly stated before Oregon’s House and
Senate Judiciary Committees on September 18, 2013, that,
“Registration of juveniles fails, in any way, to improve
public safety.” See Meeting Materials, House and Senate
Interim Committees on Judiciary, Sept 18, 2013 (Affidavit
of Elizabeth J. Letourneau, Ph.D., Associate Professor,
Department of Mental Health Director, Moore Center for
the Prevention of Child Sexual Abuse at Johns Hopkins
University).
That broad and sweeping statement is supported
by the vast majority of available peer-reviewed research. Id.(noting “strong and empirically rigorous evidence” supports
that statement). Indeed, Professor Letourneau and her col-
leagues—after completing six thorough statistical surveys
in as many states—found no deterrent effect based on juve-
nile SORS. Further, in one study involving South Carolina’s
Nonprecedential Memo Op: 323 Or App 136 (2022) 145
SORS, she found that implementation of SORS influenced
prosecution and conviction rates for sexual offenses in
“unexpected ways”:
“In particular, results indicated a significant decline in
the likelihood of prosecutors moving forward on juvenile
sex crime cases after the implementation of [SORS]. When
cases did move forward, there was a significant increase
in the odds of pleading from a sex to a non-sex crime; thus,
community safety could in fact be compromised as a result
of reduced likelihood of prosecution for juvenile sex crimes.”
See Meeting Materials, House and Senate Interim Com-
mittees on Judiciary, Sept 18, 2013 (Elizabeth J. Letourneau,
Does Sex Offender Registration and Notification Work with
Juveniles?, 4 (2009)). The results of that study led Professor
Letourneau and her colleagues to hypothesize that prose-
cutors were “reluctant to subject some juveniles who sexu-
ally offended to South Carolina’s lifetime registration and
public notification requirements and, instead, selectively
forwarded more serious cases after the implementation of
[SORS].” Id. at 3.
In my view, the phenomenon of pleading to non-
sex crimes is just as easily explained by the prosecutorial
construct of “over-charging” a defendant with an offense
with a long mandatory sentence and then pleading down
to a harsh but more flexible sentence. This construct has
a name: “Leveraging.”11 The most common form of lever-
aging in Oregon occurs when prosecutors use “leverage” to
negotiate from a determinate Measure 11 sentence to an
indeterminate sentence of like length. A study of this con-
struct in Oregon showed that prosecutors use “leveraging”
in 70 percent of serious criminal cases. Criminal Justice
Commission, State of Oregon, Longitudinal Study of the
Application of Measure 11 and Mandatory Minimums in
Oregon, ix (Mar 2011). Perhaps as a result of leveraging, in
Oregon, the number of convictions for sexual offenses sub-
ject to Measure 11 has declined in the last 15 years, but the
11
See Richard A. Oppel, Jr., Sentencing Shift Gives New Leverage to
Prosecutors, NY Times (Sept 25, 2011), https://www.nytimes.com/2011/09/26/us/
tough-sentences-help-prosecutors-push-for-plea-bargains.html (accessed Oct 31,
2022).
146 State v. J. J. L.
number of months served for those offenses by adults and
juveniles has increased by over 150 percent. Id. at 58.
Whether the unintended consequences of SORS are
the failure to prosecute sexual offenders or overcharging
and leveraging a potential lifetime of registration require-
ments, both consequences illustrate the failure of the law
to meet its nascent goals of preventing future sex offenses
and controlling recidivism. In that regard, I note that a
2009 study found that approximately 95 percent of sexual
offenders arrested for sexual offenses had no prior convic-
tions for sexual offenses and, therefore, the vast majority
of offenders did not appear on the SORS lists prior to their
offense. Jeffrey C. Sandler, Naomi J. Freeman & Kelly M.
Socia, Does A Watched Pot Boil? A Time-Series Analysis of
New York State’s Sex Offender Registration and Notification
Law, 14 Psychol, Pub Pol’y & Law 284 (2008). Those find-
ings cast serious doubt on the efficacy of SORS in targeting
repeat offenders or meaningfully reducing sexual violence.
Id.
B. Harm to Adjudicated Youth
In addition to failing to make our communities
safer, juvenile SORS do real harm to adjudicated youth. As
Professor Letourneau explained to the Oregon Legislature:
“The process of identifying oneself as a registered sex
offender multiple times per year, and of being arrested
and possibly charged for new offenses due in part to this
label seems likely to cause registered youth to view them-
selves as ‘delinquent’ even when they are law-abiding.
Ample evidence indicates that youth who view themselves
as delinquent or outside the mainstream are less likely to
change patterns of offending. Policies that promote youths’
concepts of themselves as lifetime sex offenders will likely
interrupt the development of a positive self-identity.”
Meeting Materials, House and Senate Interim Committees
on Judiciary, Sept 18, 2013 (Affidavit of Elizabeth J.
Letourneau, Ph.D., Associate Professor, Department of
Mental Health Director, Moore Center for the Prevention of
Child Sexual Abuse at Johns Hopkins University).
Professor Letourneau’s observation is supported by an
overwhelming amount of research: Studies have repeatedly
Nonprecedential Memo Op: 323 Or App 136 (2022) 147
shown that criminal prosecutions, sentences, incarcera-
tions, and stigmatization through punitive measures like
SORS lead to criminal labeling of youths and do not reform
young people. See, e.g., Patricia Allard & Malcolm Young,
Prosecuting Juveniles in Adult Court: Perspectives for
Policymakers and Practitioners, The Sentencing Project, 7
(2002) (“Although youths transferred to the adult criminal
justice system are more likely to be convicted and incarcer-
ated, they are more likely to re-offend, re-offend earlier, and
to commit more serious subsequent offenses than those who
remain in the juvenile system.”); see also Jeffrey Fagan, The
Comparative Advantage of Juvenile Versus Criminal Court
Sanctions on Recidivism among Adolescent Felony Offenders,
18 Law & Pol’y 77, 77 (1996) (“[R]ecidivism rates were sig-
nificantly lower for adolescents sentenced in the juvenile
court, regardless of sentence type or severity. The results
suggest that efforts to criminalize adolescent offending may
not produce the desired results and may in fact be counter-
productive.”). Simply put, adult sanctions are inappropriate
for children and do not reduce recidivism.
Author Nell Bernstein summarized the last few
decades of decline in the administration of juvenile justice
and the aftermath:
“The mass criminalization of teenagers, taking place of
decades of demographic transformation that have given us
the most diverse generation this country has known, has
cleared the way for the legal and literal segregation of a
group of young people—the overwhelmingly poor black and
brown children with whom we fill our juvenile prisons—
who are indelibly marked as ‘other’ by the experience: their
names exchanged for prison ID numbers, their clothing
replaced by uniforms marking them property of the state,
their resumes forever tarnished by their records, every
aspect of their futures constrained by the errors of their
youth.”
Nell Bernstein, Against Reform: Beyond the Juvenile Prison,
in Burning Down the House: The End of Juvenile Prison 307,
310 (2016).
Bernstein’s recitation of the marks of imprisoned
youth and the stigma that they carry are equally applicable
148 State v. J. J. L.
to the marks and stigma applied to juvenile registrants
under SORS.
IV. WHERE THE RUBBER MEETS THE ROAD
In my view, evidence on the effectiveness and need
for SORS for those who offend as juveniles, coupled with
new gains in the science of adolescent development, leads
to the conclusion that legislators, policymakers, and practi-
tioners should reconsider the appropriateness of the appli-
cation of SORS to those who offended as juveniles. SORS,
at least as applied to juvenile offenders, offer very little help
in providing for public safety from juvenile delinquents and
aggravate—rather than alleviate—the issues that they
were designed to address.12 Consequently, mitigation from
their application is the best possible outcome for adjudicated
youth. For that reason, application of the clear and convinc-
ing standard to a young person like J flies in the face of
good outcomes for both adjudicated youth seeking to reform
themselves and the larger community.
But if that is the obvious conclusion based on the
research—and I think it is—why does Oregon still require a
person who offended as a 13-year-old, who has participated
in treatment, and who has not reoffended, like J, prove “by
clear and convincing evidence” that he is “rehabilitated and
does not pose a threat to the safety of the public” to avoid
the stigma of sex offender registration as an adult? I believe
that the answer to that question is that the public’s belief in
“the myth” has caused legislators to adopt an approach of
caution and slow marginal change even in the face of over-
whelming data.13
12
The Supreme Court of Canada recently drew those same conclusions about
application of certain SORS against adults and concluded that those SORS were
“overbroad” in their application, requiring that those SORS be invalidated.
R. v. Ndhlovu, 2022 SCC 38 (Can).
13
For example, former Representative Wally Hicks, a Republican from
Grants Pass who sat on the Joint House and Senate Committee on Public Safety,
when faced with a proposal to scale back the scope of Measure 11, explained that
he did not think the “undoing of Measure 11 is going to happen,” but noted the
legislature needed to figure out a way to both “cut costs and keep the public safe,”
because those are both “popular.” Chris Conrad, The High Cost of Measure 11,
Mail Tribune (May 5, 2013), https://www.mailtribune.com/archive/2013/05/05/
the-high-cost-of-measure-11/ (accessed Oct 31, 2022).
Nonprecedential Memo Op: 323 Or App 136 (2022) 149
In A. R. H., we recognized that “the burdens
imposed on youths under ORS 163A.030, and our review of
orders issued under ORS 163A.030, are a matter of legisla-
tive prerogative, and may be changed by legislative action.”
314 Or App at 678. But courts have been responsible for
helping to spread the myth of “frightening and high” recidi-
vism among sex offenders, which has led us to where we are
today. Therefore, it is important to say the following words
that must be said from the bench: Oregon’s scheme for sex
offender reporting for those who offended as juveniles is
a punitive measure, that does not make our communities
safer, and has negative consequences which disproportion-
ately effect Oregon’s most at risk kids.