In re C.P. ( 2012 )

[Cite as In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446.]
IN RE C.P.
[Cite as In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446.]
Juveniles—Sex offenders—Eighth Amendment prohibition against cruel and
unusual punishment—Due process—R.C. 2152.86—Automatic, lifelong
registration and notification requirements of R.C. 2152.86 violate due process
and prohibition against cruel and unusual punishment for juvenile sex
offenders tried within juvenile system.
(No. 2010-0731—Submitted February 16, 2011—Decided April 3, 2012.)
APPEAL from the Court of Appeals for Athens County,
No. 09CA41, 2010-Ohio-1484.
__________________
SYLLABUS OF THE COURT
To the extent that it imposes automatic, lifelong registration and notification
requirements on juvenile sex offenders tried within the juvenile system,
R.C. 2152.86 violates the constitutional prohibition against cruel and
unusual punishment contained in the Eighth Amendment to the United
States Constitution and the Ohio Constitution, Article I, Section 9, and the
Due Process Clause of the Fourteenth Amendment to the United States
Constitution and the Ohio Constitution, Article I, Section 16.
__________________
PFEIFER, J.
{¶ 1} In this case, we determine the constitutionality of R.C. 2152.86,
which creates a new class of juvenile sex-offender registrants: public-registry-
qualified juvenile-offender registrants. These offenders are automatically subject
to mandatory, lifetime sex-offender registration and notification requirements,
including notification on the Internet. We hold that to the extent that it imposes
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such requirements on juvenile offenders tried within the juvenile system, R.C.
2152.86 violates the constitutional prohibition against cruel and unusual
punishment contained in the Eighth Amendment to the United States Constitution
and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and the Ohio
Constitution, Article I, Section 16.
Factual and Procedural Background
{¶ 2} On June 26, 2009, a multicount complaint was filed in Athens
County Juvenile Court against appellant, C.P., who was 15 years old at the time.
The complaint alleged that C.P. was a delinquent child and charged him with two
counts of rape and one count of kidnapping with sexual motivation, each count a
first-degree felony if committed by an adult. The victim was a six-year-old boy, a
relative of C.P.
{¶ 3} The state immediately moved the juvenile court to transfer
jurisdiction to the Athens County Court of Common Pleas, General Division. On
July 29, 2009, the juvenile court held a hearing pursuant to R.C. 2152.12(B) to
determine whether to retain jurisdiction over C.P.’s case. The parties stipulated
that there was probable cause to believe that C.P. had committed the alleged
offenses. The court learned that at age 11, C.P. had been adjudicated delinquent
in Utah for sexually abusing his half-sister, who was two years younger than C.P.,
and that C.P. had undergone over two years of sex-offender treatment there as a
result of his adjudication.
{¶ 4} At a hearing held on August 24, 2009, the court denied the state’s
motion to transfer jurisdiction over C.P. to the general division to be tried as an
adult. The judge stated,
I think we can have our best chance of working with [C.P.]
in the juvenile system and I don’t think everything has been
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exhaustively tried there. It doesn’t mean that there won’t be
consequences and it doesn’t mean that there won’t be loss of
freedom there certainly will be if convicted of this offense [sic],
but I think we have time within the juvenile system and we have
resources within the juvenile system to work with this boy. So, I
deny the state’s motion for transfer and we’ll continue to work
with this within the juvenile system.
{¶ 5} In ruling against transfer, the judge cited the factors in R.C.
2152.12(E)(6) (“[t]he child is not emotionally, physically, or psychologically
mature enough for the transfer”) and (E)(7) (“[t]he child has a mental illness or is
a mentally retarded person”).
{¶ 6} C.P. thus remained under the jurisdiction of the juvenile court. The
state sought to have C.P. sentenced as a serious youthful offender (“SYO”)
pursuant to R.C. 2152.13(A)(4)(b), and on September 14, 2009, the grand jury
returned an indictment against him with an SYO specification attached to each of
the three counts.
{¶ 7} On September 23, 2009, C.P. entered an admission to each charge in
the indictment; because of the nature of his offenses, he was eligible for a
discretionary SYO dispositional sentence pursuant to R.C. 2152.11(D)(2)(b). At a
subsequent hearing, the court found C.P. to be a delinquent child and designated
him an SYO in relation to each offense, imposing a three-year minimum
commitment to the Ohio Department of Youth Services on each count, to run
concurrently. As part of the SYO disposition, the court imposed three concurrent
five-year prison terms, which were stayed pending C.P.’s successful completion
of his juvenile dispositions.
{¶ 8} Further, the court advised C.P. of the duties and classification
automatically imposed upon him by R.C. 2152.86. Pursuant to R.C.
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2152.86(A)(1), the court classified C.P. a juvenile-offender registrant and
informed him of his duty to abide by the registration and notification requirements
of R.C. Chapter 2950. The court also classified C.P. a public-registry-qualified
juvenile-offender registrant (“PRQJOR”). Pursuant to R.C. 2152.86(B)(1), C.P.
was automatically classified as a Tier III sex-offender/child-victim offender. The
judge further informed C.P. of his registration requirements:
You are required to register in person with the sheriff of the
county in which you establish residency within three days of
coming into that county, or if temporarily domiciled for more than
three days. If you change residence address you shall provide
written notice of that residence change to the sheriff with whom
you are most recently registered and to the sheriff in the county in
which you intend to reside at least 20-days prior to any change of
residence address. * * * You are required to provide to the sheriff
temporary lodging information including address and length of
stay if your absence will be for seven days or more. Since you are
a public registry qualified juvenile offender registrant you are also
required to register in person with the sheriff of the county in
which you establish a place of education immediately upon
coming to that county. * * * You are also required to register in
person with the sheriff of the county in which you establish a place
of employment if you have been employed for more than three
days or for an aggregate of 14 days in a calendar year. * * *
Employment includes voluntary services. As a public registry
qualified juvenile offender registrant, you * * * also shall provide
written notice of a change of address or your place of employment
or your place of education at least 20 days prior to any change and
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no later than three days after the change of employment. * * *
[Y]ou shall provide written notice within three days of any change
in vehicle information, e-mail addresses, internet identifiers or
telephone numbers registered to or used by you to the sheriff with
whom you are most recently registered.* * * [Y]ou are required to
abide by all of the above described requirements * * * for your
lifetime as a Tier III offender with in person verification every 90-
days. That means for the rest of your life * * * every three months
you’re going to be checking in with [the] sheriff where you live or
work or both. * * * Failure to register, failure to verify on the
specific notice and times as outlined here will result in criminal
prosecution.
{¶ 9} C.P. appealed his automatic classification as a Tier III juvenile-
offender registrant and PRQJOR to the Fourth District Court of Appeals, arguing
that R.C. 2152.86 violated his rights to due process and equal protection and his
right against cruel and unusual punishment. The court of appeals affirmed the
judgment of the trial court.
{¶ 10} The cause is before this court upon the acceptance of a
discretionary appeal.
Law and Analysis
S.B. 10 as Punishment
{¶ 11} This court has recently held, in a case involving an adult offender,
that the enhanced sex-offender reporting and notification requirements contained
in R.C. Chapter 2950 enacted by Am.Sub.S.B. No. 10 (“S.B. 10”) are punitive in
nature, making their retroactive application unconstitutional: “Following the
enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is
punitive.” State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d
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1108, ¶ 16. In this case we consider the constitutionality of the prospective,
automatic application of those reporting and notification requirements to certain
juvenile offenders.
R.C. 2152.86
{¶ 12} Pursuant to changes brought about by S.B. 10, R.C. 2152.86
creates a new class of juvenile sex-offender registrants: public-registry-qualified
juvenile-offender registrants. PRQJORs are subject to more stringent registration
and notification requirements than other juvenile-offender registrants. Moreover,
the requirements are imposed automatically rather than at the discretion of a
juvenile judge.
{¶ 13} Pursuant to R.C. 2152.86, PRQJOR status is assigned to juveniles
who (1) were 14 through 17 years old when the offense was committed, (2) have
been adjudicated a delinquent child for committing certain specified sexually
oriented offenses, including rape, gross sexual imposition when the victim is
under 12, sexual battery of a child under age 12, and aggravated murder, murder,
or kidnapping with a purpose to gratify the sexual needs or desires of the
offender, and (3) have had a court impose on them a serious youthful offender
(“SYO”) dispositional sentence under R.C. 2152.13.
Ohio’s SYO Statutory Scheme
{¶ 14} As we explained in State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-
9, 901 N.E.2d 209, the nature of an SYO disposition requires that the juvenile
remain under the continuing jurisdiction of a juvenile judge:
A juvenile charged as a potential serious youthful offender
does not face bindover to an adult court; the case remains in the
juvenile court. Under R.C. 2152.11(A), a juvenile defendant who
commits certain acts is eligible for “a more restrictive disposition.”
That “more restricted disposition” is a “serious youthful offender”
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disposition and includes what is known as a blended sentence—a
traditional juvenile disposition coupled with the imposition of a
stayed adult sentence. R.C. 2152.13. The adult sentence remains
stayed unless the juvenile fails to successfully complete his or her
traditional juvenile disposition. R.C. 2152.13(D)(2)(a)(iii).
Theoretically, the threat of the imposition of an adult sentence
encourages a juvenile’s cooperation in his own rehabilitation,
functioning as both carrot and stick.
Id. at ¶ 18.
{¶ 15} Only further bad acts by the juvenile as he is rehabilitated in the
juvenile system can cause the stayed adult penalty to be invoked:
Any adult sentence that the trial court imposes through
R.C. 2152.13(D)(2)(a)(i) is only a potential sentence—it is stayed
pursuant to R.C. 2152.13(D)(2)(a)(iii) “pending the successful
completion of the traditional juvenile dispositions imposed.” R.C.
2152.13(D)(2)(a)(ii) requires the court to impose a juvenile
disposition when it imposes an adult sentence; how the juvenile
responds to that disposition will determine whether the stay is
lifted on the adult sentence.
Id. at ¶ 30.
{¶ 16} R.C. 2152.86 changes the very nature of an SYO disposition,
imposing an adult penalty immediately upon the adjudication. The juvenile is not
given the opportunity to avoid the adult portion of his punishment by successfully
completing his juvenile rehabilitation. Instead, he must comply with all of S.B.
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10’s reporting and notification requirements for Tier III sexual offenders
contained in R.C. Chapter 2950.
Reporting and Notification Requirements for PRQJORs
{¶ 17} A PRQJOR must personally register with the sheriff within three
days of coming into a county in which he resides or temporarily is domiciled for
more than three days. R.C. 2950.04(A)(3)(a). He must also register with the
sheriff of any county he enters to attend school or any county in which he is
employed for more than three days. R.C. 2950.04(A)(3)(b)(i), (ii), and (iii).
PRQJORs must personally verify that information with the sheriff every 90 days.
R.C. 2950.06(B)(3) and (C)(1). Any time that information changes, the PRQJOR
must notify the sheriff within three days. R.C. 2950.05(A).
{¶ 18} At the time of registration, PRQJORs must provide information
such as license-plate numbers of vehicles available to them and e-mail addresses,
Internet identifiers, and telephone numbers registered to or used by them. R.C.
2950.04(C)(6) and (10). Any changes in that information must be reported to the
sheriff within three days. R.C. 2950.05(D).
{¶ 19} PRQJORs must comply with the community-notification
requirements of R.C. 2950.11(A) and (B). As part of the notification
requirements, local sheriffs disseminate the offender’s picture and personal
information to neighbors, local children services agencies, school officials, day-
care centers, local universities, and volunteer organizations in contact with
minors. R.C. 2950.11(A). The persons notified receive information regarding the
youth’s residence, place of employment, and school, as well as information about
the adjudicated offense and a photograph. R.C. 2950.11(B). As a further
requirement, PRQJORs must be included on the Ohio attorney general’s
electronic sex-offender registration and notification database (“eSORN”). R.C.
2950.13(A)(11).
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Differences Between PRQJORs and
Other Juvenile-Offender Registrants
{¶ 20} Both the method of assignment and the obligations of PRQJORs
assigned to Tier III differ from those juveniles placed in Tier III as juvenile-
offender registrants (“JORs”). For juveniles who were adjudicated delinquent
through a traditional juvenile disposition and who were age 14 or older at the time
of their delinquent act, an assignment to Tier III is not automatic. Instead, if the
juvenile court finds that the child is a JOR under R.C. 2152.82(A), the court holds
a hearing to determine the JOR’s tier classification. R.C. 2152.82(B). (Juveniles
under 14 are not subject to registration requirements, regardless of the offense.)
The determination which tier such an offender is placed in rests within the
juvenile court’s discretion. Id. If the court finds that the JOR is a Tier III sex-
offender/child-victim offender, then the court may impose certain notification
requirements contained in R.C. 2950.10 and 2950.11. R.C. 2152.82(B).
{¶ 21} Though all JORs must register personally with the sheriff within
three days of entering into a county where they will reside or be temporarily
domiciled, R.C. 2950.04(A)(3)(a), a PRQJOR must comply with additional
registration requirements. PRQJORs must personally register with the sheriff of
any county in which they attend school or in which they are employed for more
than three days or for 14 or more days in a calendar year, regardless of whether
the juvenile resides in or has a temporary domicile in that county. R.C.
2950.04(A)(3)(b). They must report within three days any change of vehicle
information, e-mail addresses, Internet identifiers, and telephone numbers. R.C.
2950.05(D).
{¶ 22} Notification requirements also differ significantly. JORs assigned
to Tier III are subject to community notification only if the juvenile court orders
it, R.C. 2152.82(B), and to victim notification only if the victim requests it. R.C.
2950.10. The registration information of JORs is not disseminated on the
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Internet. For PRQJORs, on the other hand, the community- and victim-
notification requirements are automatic. R.C. 2950.11(F)(1)(a); 2950.10(B)(2).
Further, the state must place PRQJORs on its public Internet database. R.C.
2950.13(A)(11).
{¶ 23} The potential for reclassification varies greatly between PRQJORs
and JORs. For JORs, the juvenile court must conduct a hearing “upon completion
of the disposition of that child” to determine whether the child should be
reclassified. R.C. 2152.84(A)(1). Additionally, a JOR may file a petition for
reclassification three years after the court issues its order pursuant to that
mandatory hearing, a second petition three years later, and further petitions every
five years thereafter. R.C. 2152.85(B). PRQJORs, in contrast, do not receive a
reclassification hearing upon the completion of their juvenile disposition. Instead,
they are placed on a reclassification track similar to that of adult Tier III
offenders. They are not eligible for a reclassification hearing until 25 years after
their statutory registration duties begin. R.C. 2950.15(C)(2) and 2152.85(G).
{¶ 24} In sum, for PRQJORs, Tier III classification imposes a lifetime
penalty that extends well beyond the age at which the juvenile court loses
jurisdiction. It is a consequence that attaches immediately and leaves a juvenile
with no means of avoiding the penalty by demonstrating that he will benefit from
rehabilitative opportunities.
Cruel and Unusual Punishment
Cruel and Unusual Punishment Under the United States Constitution
{¶ 25} The Eighth Amendment to the United States Constitution states,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” That the Eighth Amendment prohibits torture is
elemental. Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878). But the
bulk of Eighth Amendment jurisprudence concerns not whether a particular
punishment is barbaric, but whether it is disproportionate to the crime. Central to
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the Constitution’s prohibition against cruel and unusual punishment is the
“precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30
S.Ct. 544, 54 L.Ed. 793 (1910).
{¶ 26} Proportionality review falls within two general classifications: the
first involves “challenges to the length of term-of-years sentences given all the
circumstances in a particular case.” The second, which until recently was applied
only in capital cases, involves “cases in which the Court implements the
proportionality standard by certain categorical restrictions.” Graham v. Florida,
___ U.S. ___, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).
{¶ 27} In this case, we address the second classification of cases. Within
that classification, there are two subsets, “one considering the nature of the
offense, the other considering the characteristics of the offender.” Id. at 2022. In
regard to the nature of the offense, for instance, the court has held that capital
punishment is impermissible for nonhomicide crimes against individuals.
Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S.Ct. 2641, 171 L.Ed.2d 525(2008). In this juvenile case, we are dealing with the second subset, the
characteristics of the offender.
{¶ 28} In recent years, the court has established categorical rules
prohibiting certain punishments for juveniles. In Roper v. Simmons, 543 U.S.
551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the court prohibited the death penalty
for defendants who committed their crimes before the age of 18. In Graham, the
court held that the Eighth Amendment prohibits imposition of a life-without-
parole sentence on a juvenile offender who did not commit homicide. It is
important to note that in both Roper and Graham, the court addressed the cases of
juveniles who had been tried as adults. Here, we address the imposition of a
sentence upon a child who remains under the jurisdiction of the juvenile court.
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{¶ 29} The court engages in a two-step process in adopting categorical
rules in regard to punishment: first, the court considers whether there is a national
consensus against the sentencing practice at issue, and second, the court
determines “in the exercise of its own independent judgment whether the
punishment in question violates the Constitution.” Graham, ___ U.S. at ___, 130
S.Ct. at 2022, 176 L.Ed.2d 825.
National Consensus
{¶ 30} In 2006, Congress passed the Adam Walsh Child Protection and
Safety Act (“Adam Walsh Act”), P.L. No. 109-248, 120 Stat. 587, codified at 42
U.S.C. 16901 et seq. Section 16912(a) of the Adam Walsh Act “directs every
jurisdiction to maintain a sex-offender registry conforming to the requirements of
the Act. And to ensure compliance, Congress directed that states that did not
adopt the Adam Walsh Act risked losing ten percent of certain federal crime-
control funds that would otherwise be allocated to them. Section 16925(a).” State
v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 19. These
registry requirements are contained in the Sex Offender Registration and
Notification Act (“SORNA”), Title I of the Adam Walsh Act.
{¶ 31} Ohio was the first state to implement SORNA. Id. at ¶ 20. By the
start of 2011, only three other states were in substantial compliance with SORNA.
http://www.ojp.usdoj.gov/newsroom/pressreleases/2011/SMART11054.htm.
Then, on January 11, 2011, the United States attorney general issued
Supplemental Guidelines for Sex Offender Registration and Notification, 76
Fed.Reg. 1630 (“Supplemental Guidelines”). These guidelines made significant
changes to the National Guidelines for Sex Offender Registration and Notification
issued on July 2, 2008. 73 Fed.Reg. 38030. The attorney general promulgated the
Supplemental Guidelines in furtherance of his key role in the implementation of
SORNA; SORNA “charges the Attorney General with responsibility for issuing
guidelines and regulations to interpret and implement SORNA and for
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determining whether jurisdictions have substantially implemented SORNA in
their programs. See 42 U.S.C. 16912(b), 16925.” 76 Fed.Reg. at 1631.
{¶ 32} In releasing the Supplemental Guidelines, the attorney general
noted that one of the largest barriers to compliance by states was the fact that
“SORNA includes as covered ‘sex offender[s]’ juveniles at least 14 years old who
are adjudicated delinquent for particularly serious sex offenses.” 76 Fed.Reg. at
1636. An April 2009 50-state survey on SORNA conducted by the National
Consortium for Justice Information and Statistics stated that “[t]he most
commonly cited barrier to SORNA compliance was the act’s juvenile registration
and reporting requirements, cited by 23 states.” National Consortium for Justice
Information and Statistics, Survey on State Compliance with the Sex Offender
Registration and Notification Act (SORNA) (2009) 2. In 2008, the Council of
State Governments promulgated a resolution against the application of SORNA to
juveniles, stating that “[t]he Council of State Governments strongly opposes
SORNA’s application to juvenile sex offenders and urges Congress to revise the
law to more accurately address the needs of juvenile offenders.”
http://www.csg.org/knowledgecenter/docs/CSG%20Resolution%20Opposing%20
SORNA%20Application%20to%20Juvenile%20Offenders.pdf.
{¶ 33} In January 2011, because of that resistance by the states, the
attorney general exercised his authority under 42 U.S.C. 16918(c)(4) “to provide
that jurisdictions need not publicly disclose information concerning persons
required to register on the basis of juvenile delinquency adjudications.” 76
Fed.Reg. at 1632.
{¶ 34} The change created a new discretionary exemption from public
disclosure on the Internet. Moreover, the attorney general announced that
jurisdictions are also no longer required to provide registration information to
“certain school, public housing, social service, and volunteer entities, and other
organizations, companies, or individuals who request notification. * * *
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Accordingly, if a jurisdiction decides not to include information on a juvenile
delinquent sex offender on its public Web site, as is allowed by these
supplemental guidelines, information on the sex offender does not have to be
disclosed to these entities.” 76 Fed.Reg. at 1637.
{¶ 35} Thus, in response to the national foot-dragging on SORNA
compliance, the attorney general completely lifted the requirement that juveniles
be placed on eSORN and that certain entities be notified of their status:
“[F]ollowing the issuance of these supplemental guidelines, there is no remaining
requirement under SORNA that jurisdictions publicly disclose information about
sex offenders whose predicate sex offense ‘convictions’ are juvenile delinquency
adjudications.” 76 Fed.Reg. at 1632.
{¶ 36} Thus, the attorney general acknowledged that to be SORNA
compliant in January 2011 required less in the area of publication of a juvenile’s
status than it had previously:
Given this change, the effect of the remaining registration
requirements under SORNA for certain juvenile delinquent sex
offenders is, in essence, to enable registration authorities to track
such offenders following their release and to make information
about them available to law enforcement agencies. * * * There is
no remaining requirement under SORNA that jurisdictions engage
in any form of public disclosure or notification regarding juvenile
delinquent sex offenders. Jurisdictions are free to do so, but need
not do so to any greater extent than they may wish.
76 Fed.Reg. at 1632.
{¶ 37} This declaration is a major shift in policy, reflective of a national
consensus against the very policy that Ohio imposed as part of its attempt to
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comply with SORNA. In short, outside of three other states, the rest of the nation
dealt with an entirely different landscape vis-à-vis SORNA. The goalposts had
been moved—after Ohio and other states had already instituted a system that the
rest of the nation resisted. The assumption that a national consensus favored
publication of juvenile sex offenders’ personal information had collapsed. Even
after the Supplemental Guidelines, as of December 2011, the United States Justice
Department has reported that only 15 states are in substantial compliance with
SORNA. National Conference of State Legislatures, Adam Walsh Child
Protection and Safety Act Compliance News, http://www.ncsl.org/?tabid=12696
(updated Dec. 14, 2011); http://www.governing.com/blogs/fedwatch/States-Find-
SORNA-Non-Compliance-Cheaper.html (Nov. 11, 2011).
Independent Review
{¶ 38} Although national consensus is an important factor in the
determination of whether a punishment is cruel or unusual, this court must also
conduct an independent review of the sentencing practice in question to determine
whether it fits within the constraints of the Eighth Amendment. Graham, ___
U.S. at ___, 130 S.Ct. at 2026, 176 L.Ed.2d 825, citing Roper, 543 U.S. at 575,
125 S.Ct. 1183, 161 L.Ed.2d 1. “The judicial exercise of independent judgment
requires consideration of the culpability of the offenders at issue in light of their
crimes and characteristics, along with the severity of the punishment in question,
* * * [and] whether the challenged sentencing practice serves legitimate
penological goals.” Graham at 2026. We thus undertake our own independent
review addressing these factors.
Culpability of Offenders
{¶ 39} In regard to the culpability of the offenders, we note that Ohio has
developed a system for juveniles that assumes that children are not as culpable for
their acts as adults. The court’s decision in Graham supports this self-evident
principle:
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Roper established that because juveniles have lessened
culpability they are less deserving of the most severe punishments.
543 U.S., at 569, 125 S.Ct. 1183. As compared to adults, juveniles
have a “ ‘lack of maturity and an underdeveloped sense of
responsibility’ ”; they “are more vulnerable or susceptible to
negative influences and outside pressures, including peer
pressure”; and their characters are “not as well formed.” Id., at
569-570, 125 S.Ct. 1183. These salient characteristics mean that
“[i]t is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortunate yet
transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.” Id., at 573, 125 S.Ct. 1183.
Accordingly, “juvenile offenders cannot with reliability be
classified among the worst offenders.” Id., at 569, 125 S.Ct. 1183.
A juvenile is not absolved of responsibility for his actions, but his
transgression “is not as morally reprehensible as that of an adult.”
Thompson [v. Oklahoma, 487 U.S. 815] at 835, 108 S.Ct. 2687,
[101 L.Ed.2d 702 (1988)] (plurality opinion).
Graham, ___ U.S. ___, 130 S.Ct. at 2026, 176 L.Ed.2d 825.
{¶ 40} Not only are juveniles less culpable than adults, their bad acts are
less likely to reveal an unredeemable corruptness:
Juveniles are more capable of change than are adults, and
their actions are less likely to be evidence of “irretrievably
depraved character” than are the actions of adults. Roper, 543 U.S.,
at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1. It remains true that “[f]rom
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a moral standpoint it would be misguided to equate the failings of a
minor with those of an adult, for a greater possibility exists that a
minor’s character deficiencies will be reformed.” Ibid.Graham at 2026-2027.
{¶ 41} In this case we address a lifetime penalty—albeit open to review
after 25 years—making the offender’s potential for redemption particularly
relevant. Juvenile offenders are more capable of change than adult offenders.
And again, we are dealing in this case with juveniles who remain under the
jurisdiction of the juvenile court. Based on the review of a juvenile judge,
juveniles deemed serious youthful offenders have been determined to be
amenable to the rehabilitative aims of the juvenile system. They are in a category
of offenders that does not include the worst of those who commit crimes as
juveniles.
Nature of the Offenses
{¶ 42} An important consideration in addressing culpability in an
independent review of a punishment for Eighth Amendment purposes is the
nature of the offenses to which the penalty may apply. In this case, R.C. 2152.86
applies to sex offenses, including rape. R.C. 2152.86(A)(1)(a). In Graham, the
court stated that “defendants who do not kill, intend to kill, or foresee that life will
be taken are categorically less deserving of the most serious forms of punishment
than are murderers.” Graham at 2027. The court bluntly noted, “Although an
offense like robbery or rape is ‘a serious crime deserving serious punishment,’
Enmund [v. Florida, 458 U.S. 782] at 797, 102 S.Ct. 3368, [73 L.Ed.2d 1140(1982)], those crimes differ from homicide crimes in a moral sense.”
Graham,___ U.S. at ___, 130 S.Ct. at 2027, 176 L.Ed.2d 825.
{¶ 43} Thus, as the court pointed out in Graham, a juvenile who did not
kill or intend to kill has “twice diminished moral culpability” on account of his
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age and the nature of his crime. Id. Thus, when we address the constitutionality
of the penalties resulting from an application of R.C. 2152.86, we first recognize
that those punishments apply to juveniles with a reduced degree of moral
culpability.
Severity of Punishment
{¶ 44} The next step in the Eighth Amendment analysis is a consideration
of the punishment. In this case, as opposed to Roper and Graham, we are not
dealing with the harshest and next-harshest possible sentences, death and life
without possibility of parole. Indeed, in this case, if C.P.’s behavior does not
warrant the imposition of the adult portion of his SYO sentence, he will not spend
time in an adult prison cell. When his juvenile commitment is complete, he will
no longer be confined. However, his punishment will continue. Registration and
notification requirements for life, with the possibility of having them lifted only
after 25 years, are especially harsh punishments for a juvenile. In Graham, the
court wrote that a life sentence for a juvenile is different from such a sentence for
an adult; the juvenile will spend a greater percentage of his life in jail than the
adult. Graham, ___ U.S. ___, 130 S.Ct. at 2028, 176 L.Ed.2d 825.
{¶ 45} Here, too, the registration and notification requirements are
different from such a penalty for adults. For juveniles, the length of the
punishment is extraordinary, and it is imposed at an age at which the character of
the offender is not yet fixed. Registration and notification necessarily involve
stigmatization. For a juvenile offender, the stigma of the label of sex offender
attaches at the start of his adult life and cannot be shaken. With no other offense
is the juvenile’s wrongdoing announced to the world. Before a juvenile can even
begin his adult life, before he has a chance to live on his own, the world will
know of his offense. He will never have a chance to establish a good character in
the community. He will be hampered in his education, in his relationships, and in
his work life. His potential will be squelched before it has a chance to show itself.
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A juvenile—one who remains under the authority of the juvenile court and has
thus been adjudged redeemable—who is subject to sex-offender notification will
have his entire life evaluated through the prism of his juvenile adjudication. It
will be a constant cloud, a once-every-three-month reminder to himself and the
world that he cannot escape the mistakes of his youth. A youth released at 18
would have to wait until age 43 at the earliest to gain a fresh start. While not a
harsh penalty to a career criminal used to serving time in a penitentiary, a lifetime
or even 25-year requirement of community notification means everything to a
juvenile. It will define his adult life before it has a chance to truly begin.
Penological Justifications
{¶ 46} Finally, in an Eighth Amendment analysis, we must consider the
penological justifications for the sentencing practice. Graham, ___ U.S. at ___,
130 S.Ct. at 2028, 176 L.Ed.2d 825. Since we are deciding a case involving a
juvenile who has not been bound over to adult court, the goals of juvenile
disposition are relevant to our analysis. R.C. 2152.01 establishes the purposes of
any juvenile disposition:
(A) The overriding purposes for dispositions under this
chapter are to provide for the care, protection, and mental and
physical development of children subject to this chapter, protect
the public interest and safety, hold the offender accountable for the
offender’s actions, restore the victim, and rehabilitate the offender.
These purposes shall be achieved by a system of graduated
sanctions and services.
{¶ 47} Lifetime registration and notification requirements run contrary to
R.C. 2152.01’s goals of rehabilitating the offender and aiding his mental and
physical development. Instead, lifetime registration and notification ensure that
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PRQJORs will encounter continued difficulties, because of their offenses, long
into adulthood. Notification and registration anchor the juvenile offender to his
crime.
{¶ 48} As for protecting the public interest and safety, some might argue
that the registration and notification requirements further those aims. However, it
is difficult to say how much the public interest and safety are served in individual
cases, because the PRQJOR statutory scheme gives the juvenile judge no role in
determining how dangerous a child offender might be or what level of registration
or notification would be adequate to preserve the safety of the public.
{¶ 49} The PRQJOR penalties do meet the statutory objective of
accountability. However, a major issue in this case is whether the depth and
duration of the accountability that R.C. 2152.86 requires of a juvenile offender are
excessive. Another statutory goal, restoring the victim, is advanced only
minimally by the requirements of R.C. 2152.86.
{¶ 50} In addition to the penological considerations laid out by Ohio’s
legislature, Graham set forth “the goals of penal sanctions that have been
recognized as legitimate—retribution, deterrence, incapacitation, and
rehabilitation” and considered whether any of those goals justified a sentence of
life without parole for juveniles committing nonhomicide crimes. Id., ___ U.S. at
___, 130 S.Ct. at 2028, 176 L.Ed.2d 825.
{¶ 51} The court held that retribution could not support the sentence in
that case, because “ ‘[t]he heart of the retribution rationale is that a criminal
sentence must be directly related to the personal culpability of the criminal
offender,’ Tison [v. Arizona, 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127(1987)],” and because “ ‘[w]hether viewed as an attempt to express the
community’s moral outrage or as an attempt to right the balance for the wrong to
the victim, the case for retribution is not as strong with a minor as with an adult.’
[Roper,] 543 U.S., at 571, 125 S.Ct. 1183 [161 L.Ed.2d 1].” Graham at 2028. As
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the court recognized in Graham, retribution does not justify imposing the same
serious penalty on a less culpable defendant.
{¶ 52} The court in Graham also discounted the penological goal of
deterrence for the same reason we do in this case:
Because juveniles’ “lack of maturity and underdeveloped sense of
responsibility * * * often result in impetuous and ill-considered
actions and decisions,” Johnson v. Texas, 509 U.S. 350, 367, 113
S.Ct. 2658, 125 L.Ed.2d 290 (1993), they are less likely to take a
possible punishment into consideration when making decisions.
Graham, ___ U.S. at ___, 130 S.Ct. at 2028-2029, 176 L.Ed.2d 825. Further, in
this case, the significance of the particular punishment and its effects are less
likely to be understood by the juvenile than the threat of time in a jail cell.
Juveniles are less likely to appreciate the concept of loss of future reputation.
{¶ 53} Incapacitation as a penological goal is not relevant in this case.
The focus here is what happens to a juvenile once he emerges from confinement.
{¶ 54} Finally, as to the final penological goal—rehabilitation—we have
already discussed the effect of forcing a juvenile to wear a statutorily imposed
scarlet letter as he embarks on his adult life. “Community notification may
particularly hamper the rehabilitation of juvenile offenders because the public
stigma and rejection they suffer will prevent them from developing normal social
and interpersonal skills—the lack of those traits [has] been found to contribute to
future sexual offenses.” Michele L. Earl-Hubbard, The Child Sex Offender
Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results
Associated with the Scarlet Letter Laws of the 1990s, 90 Nw.U.L.Rev. 788, 855-
856 (1996).
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{¶ 55} In addition to increasing the likelihood of reoffense, publication of
a juvenile’s offense makes reintegration into society more difficult, due in part to
the personal economic impact:
Sex offender registration constitutes an additional form of
punishment for juvenile sex offenders, perhaps more substantial
than that experienced by adult sex offenders. Many juvenile sex
offenders are released back into society after completion of their
court-imposed disposition at an age when they would ordinarily
first be entering the workforce and find themselves unable to
obtain employment due to their publicized “sex offender” label.
Any job in education, health care, or the military is virtually
impossible to get.
Phoebe Geer, Justice Served? The High Cost of Juvenile Sex Offender
Registration, 27 Developments in Mental Health Law 33, 48-49 (2008). Any job
that requires a background check is placed virtually out of reach. Id. And
although a PRQJOR’s employer’s name is not made public under R.C.
2950.11(B)(2), the employer’s address is. That fact can only harm a juvenile
offender’s employment prospects.
{¶ 56} The social response to publication of a juvenile’s sexual offenses
also affects rehabilitation:
When a sex offender registration and notification law
requires door-to-door neighborhood notification, public
announcements, or listing on a sex offender website, the likelihood
that a juvenile offender’s peers and community will discover the
offense is very high. Public disclosure may inspire “vigilantism,
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January Term, 2012
public shame, social ostracism, and various types of adverse legal
action, including loss of employment and eviction.”
Id. at 47, quoting Stacey Hiller, The Problem with Juvenile Sex Offender
Registration: The Detrimental Effects of Public Disclosure, 7 B.U.Pub.Int.L.J.
271, 287 (1998).
{¶ 57} We conclude that the social and economic effects of automatic,
lifetime registration and notification, coupled with an increased chance of
reoffense, do violence to the rehabilitative goals of the juvenile court process. As
the court decided in Graham in regard to a life sentence without parole for
juvenile offenders, we find that penological theory “is not adequate to justify” the
imposition of the lifetime registration and notification requirements of R.C.
2152.86 for juveniles. Graham, ___ U.S. at ___, 130 S.Ct. at 2030, 176 L.Ed.2d
825.
Graham Factors
{¶ 58} In sum, the limited culpability of juvenile nonhomicide offenders
who remain within the jurisdiction of the juvenile court, the severity of lifetime
registration and notification requirements of PRQJOR status, and the inadequacy
of penological theory to justify the punishment all lead to the conclusion that the
lifetime registration and notification requirements in R.C. 2152.86 are cruel and
unusual. We thus hold that for a juvenile offender who remains under the
jurisdiction of the juvenile court, the Eighth Amendment forbids the automatic
imposition of lifetime sex-offender registration and notification requirements.
Cruel and Unusual Punishment Under Ohio Law
{¶ 59} The Ohio Constitution, Article I, Section 9, contains its own
prohibition against cruel and unusual punishment. It provides unique protection
for Ohioans:
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The Ohio Constitution is a document of independent force.
In the areas of individual rights and civil liberties, the United
States Constitution, where applicable to the states, provides a floor
below which state court decisions may not fall. As long as state
courts provide at least as much protection as the United States
Supreme Court has provided in its interpretation of the federal Bill
of Rights, state courts are unrestricted in according greater civil
liberties and protections to individuals and groups.
Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of
the syllabus. Thus, the Ohio Constitution, Article I, Section 9, provides
protection independent of the protection provided by the Eighth Amendment.
{¶ 60} In its own jurisprudence regarding Article I, Section 9, this court
has recognized that cases involving cruel and unusual punishments are rare,
“limited to those involving sanctions which under the circumstances would be
considered shocking to any reasonable person.” McDougle v. Maxwell, 1 Ohio
St.2d 68, 70, 203 N.E.2d 334 (1964). Lack of proportionality is a key factor: “A
punishment does not violate the constitutional prohibition against cruel and
unusual punishments, if it be not so greatly disproportionate to the offense as to
shock the sense of justice of the community.” State v. Chaffin, 30 Ohio St.2d 13,
282 N.E.2d 46 (1972), paragraph three of the syllabus.
{¶ 61} For juveniles who remain in the juvenile system, R.C. 2152.86 is
striking in the disproportionate way it treats PRQJORs. In In re Agler, 19 Ohio
St.2d 70, 72, 249 N.E.2d 808 (1969), this court stated that “the decided emphasis
[of juvenile courts] should be upon individual, corrective treatment.” We trust
judges to make the important calls in imposing the adult portion of the SYO
sentence. In discretionary SYO cases, juvenile judges determine whether an SYO
denomination is appropriate. But under R.C. 2152.86, the juvenile judge is given
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January Term, 2012
absolutely no discretion over the portion of the juvenile’s penalty that could
extend for a lifetime. There is none of the important, individualized work that
juvenile judges do. Instead, a lifetime punishment is imposed with no chance for
reconsideration of its appropriateness for 25 years. Compared to punishments for
other juvenile offenders, whose cases are reevaluated when their juvenile
disposition ends and at regularly scheduled intervals thereafter, this punishment is
disproportionate.
{¶ 62} Lack of proportionality is also evidenced by the very public nature
of the penalty. The punishment of lifetime exposure for a wrong committed in
childhood runs counter to the private nature of our juvenile court system.
Confidentiality has always been at the heart of the juvenile justice system. That
core principle is trampled by any requirement of public notification. Timothy E.
Wind, The Quandary of Megan’s Law: When the Sex Offender is a Child, 37
J.Marshall L.Rev. 73, 117 (2003). Publicity is even more of a concern for
PRQJORs, whose information is disseminated on the Internet.
{¶ 63} Ohio’s juvenile system is designed to shield children from
stigmatization based upon the bad acts of their youth:
For delinquent children, “it is the law’s policy ‘to hide
youthful errors from the full gaze of the public and bury them in
the graveyard of the forgotten past.’ ” In re Gault (1967), 387 U.S.
1, 24, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527, 544. In Ohio, we are
required to liberally interpret the juvenile delinquency provisions
to “protect the public interest in removing the consequences of
criminal behavior and the taint of criminality from children
committing delinquent acts and to substitute therefor a program of
supervision, care, and rehabilitation.” See R.C. 2151.01(B).
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State ex rel. Plain Dealer Publishing Co. v. Geauga Cty. Court of Common Pleas,
Juvenile Div., 90 Ohio St.3d 79, 83, 734 N.E.2d 1214 (2000).
{¶ 64} “[T]raditionally juveniles have been shielded from the stigma of
the proceedings by keeping hearings private and not publishing juveniles’ names.
See Champion & Mays, Transferring Juveniles to Criminal Courts: Trends and
Implications for Criminal Justice (1991) 38.” State v. Hanning, 89 Ohio St.3d 86,
89, 728 N.E.2d 1059 (2000).
{¶ 65} In this case, for instance, we refer to the juvenile by his initials,
rather than by his full name. But if R.C. 2152.86 is enforced, his name, offense,
and addresses will be published on the Internet.
{¶ 66} The Ohio Juvenile Rules also are designed to keep juvenile
dispositions private. Juv.R. 37(B) states, “No public use shall be made by any
person, including a party, of any juvenile court record * * *, except in the course
of an appeal or as authorized by order of the court or by statute.” This court wrote
in State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of
Common Pleas, Juvenile Div., 73 Ohio St.3d 19, 22, 652 N.E.2d 179 (1995), that
“[t]he purpose of Juv.R. 37(B) is to keep confidential juvenile court records
involving children, since their welfare is at stake.”
{¶ 67} Registration and notification requirements frustrate two of the
fundamental elements of juvenile rehabilitation: confidentiality and the avoidance
of stigma. Confidentiality promotes rehabilitation by allowing the juvenile to
move into adulthood without the baggage of youthful mistakes. Public exposure
of those mistakes brands the juvenile as an undesirable wherever he goes. See
Wind, 37 J.Marshall L.Rev. at 117.
{¶ 68} The publication required by S.B. 10 causes the greatest possible
stigmatization:
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Operating directly contrary to the rehabilitative goals of the
juvenile justice system, sex offender registration and notification
laws can publicly and permanently mark juvenile sex offenders as
deviant criminals who should be feared and shunned. While many
juvenile proceedings are confidential and sealed, sex offender
registration and notification laws, by creating a public record,
place the sexual offense of a juvenile directly and prominently in
the public eye.
[F]ew labels are as damaging in today’s society as
“convicted sex offender.” Sex offenders are, as one scholar put it,
“the lepers of the criminal justice system,” with juveniles listed in
the sex offender registry sharing this characterization. The state’s
interest in and responsibility for a juvenile’s well-being and
rehabilitation is not promoted by a practice that makes a juvenile’s
sex offenses public.
(Footnotes omitted.) Geer, Justice Served?, 27 Developments in Mental Health
Law at 47, quoting Robert E. Shepherd, Advocating for the Juvenile Sex Offender,
Part 2 (2007), 21 Crim.Just. 52, 53.
{¶ 69} S.B. 10 forces registration and notification requirements into a
juvenile system where rehabilitation is paramount, confidentiality is elemental,
and individualized treatment from judges is essential. The public punishments
required by R.C. 2152.86 are automatic, lifelong, and contrary to the rehabilitative
goals of the juvenile system. We conclude that they “shock the sense of justice of
the community” and thus violate Ohio’s prohibition against cruel and unusual
punishments.
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Due Process
{¶ 70} Appellant also argues that R.C. 2152.86 violates a juvenile’s right
to due process guaranteed by the Fourteenth Amendment to the United States
Constitution and the Ohio Constitution, Article I, Section 16. We agree.
{¶ 71} “Constitutional procedural safeguards in the juvenile context find
their genesis in the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. ” D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d
209, ¶ 44. Due process standards as they relate to juvenile proceedings are
inexact; this court has held that “fundamental fairness is the overarching
concern.” Id. at ¶ 51.
{¶ 72} From a due process perspective, both this court and the United
States Supreme Court have held that juveniles may be treated differently from
adults.
[O]ur acceptance of juvenile courts distinct from the adult criminal
justice system assumes that juvenile offenders constitutionally may
be treated differently from adults. * * * Viewed together, our
cases show that although children generally are protected by the
same constitutional guarantees against governmental deprivations
as are adults, the State is entitled to adjust its legal system to
account for children’s vulnerability and their needs for “concern,
* * *, sympathy, and * * * paternal attention.” [McKeiver v.
Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 29 L.Ed.2d 647(1971)] (plurality opinion).
Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). The
United States Supreme Court has stated that “the applicable due process standard
in juvenile proceedings * * * is fundamental fairness.” McKeiver at 543.
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January Term, 2012
{¶ 73} In D.H., this court applied a fundamental-fairness standard in
addressing due process concerns, holding that a balanced approach is required to
preserve the special nature of the juvenile process. We recognized the state’s
stake in the rehabilitation of juvenile offenders and the state’s paternal role:
The State has “a parens patriae interest in preserving and
promoting the welfare of the child,” Santosky v. Kramer, 455 U.S.
745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982), which
makes a juvenile proceeding fundamentally different from an adult
criminal trial. We have tried, therefore, to strike a balance—to
respect the “informality” and “flexibility” that characterize
juvenile proceedings, In re Winship [397 U.S. 358, 366, 90 S.Ct.
1068, 25 L.Ed.2d 368 (1970)], and yet to ensure that such
proceedings comport with the “fundamental fairness” demanded
by the Due Process Clause. Breed v. Jones [421 U.S. 519, 531, 95
S.Ct. 1779, 44 L.Ed.2d 346 (1975)]; McKeiver, supra, 403 U.S., at
543, 91 S.Ct., at 1985, [29 L.Ed.2d 647] (plurality opinion).
D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 50, quoting Schall v.
Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984).
{¶ 74} In D.H., we addressed whether fundamental fairness requires a jury
to participate in the imposition of the adult portion of a sentence in an SYO case
tried to a jury. The court had previously held in a case involving sentences for
adult offenders, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, that statutes violate the Sixth Amendment right to trial by jury if they require
judicial fact-finding before imposition of consecutive sentences, sentence
enhancements, or sentences greater than the maximum term authorized by a jury
verdict or admission of the defendant. In Foster, the statutes at issue required the
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trial judge, not a jury, to make factual determinations before imposing
consecutive sentences and sentence enhancements; in D.H., the SYO statute
required the juvenile judge to make factual determinations before imposing the
adult portion of the SYO sentence.
{¶ 75} In D.H., we held that fundamental fairness does not demand the
same Sixth Amendment jury-trial rights for juveniles as required by Foster for
adults. This court based its decision on the special role of juvenile courts and
juvenile judges.
The court’s dispositional role is at the heart of the
remaining differences between juvenile and adult courts. It is there
that the expertise of a juvenile judge is necessary. The judge, given
the factors set forth in R.C. 2152.13(D)(2)(a)(i), must assess the
strengths and weaknesses of the juvenile system vis-à-vis a
particular child to determine how this particular juvenile fits within
the system and whether the system is equipped to deal with the
child successfully. That assessment requires as much familiarity
with the juvenile justice system as it does familiarity with the facts
of the case. To leave that determination to an expert, given the
juvenile system’s goal of rehabilitation, does not offend
fundamental fairness, especially since the adult portion of the
blended sentence that the judge imposes upon a jury verdict is not
immediately, and may never be, enforced.
Id., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 59.
{¶ 76} Thus, this court held that the discretionary role of the judge in the
disposition of a juvenile case overrides the importance of the role of the jury. The
disposition of a child is so different from the sentencing of an adult that
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fundamental fairness to the child demands the unique expertise of a juvenile
judge. Id.{¶ 77} R.C. 2152.86 eliminates the discretion of the juvenile judge, this
essential element of the juvenile process, at the most consequential part of the
dispositional process. R.C. 2152.86 requires the automatic imposition of a
lifetime punishment—with no chance of reconsideration for 25 years—without
benefit of a juvenile judge weighing its appropriateness. An automatic longterm
punishment is contrary to the juvenile system’s core emphasis on individual,
corrective treatment and rehabilitation. As we held in In re Caldwell, 76 Ohio
St.3d 156, 157, 666 N.E.2d 1367 (1996),
[t]he legislative purpose regarding [juveniles] has been laid out in
R.C. 2151.01: to provide for the care, protection, and mental and
physical development of children, to protect the public from the
wrongful acts committed by juvenile delinquents, and to
rehabilitate errant children and bring them back to productive
citizenship, or, as the statute states, to supervise, care for and
rehabilitate those children. Punishment is not the goal of the
juvenile system, except as necessary to direct the child toward the
goal of rehabilitation.
{¶ 78} R.C. 2152.86(B)(1) requires the imposition of an adult penalty for
juvenile acts without input from a juvenile judge. Under R.C. 2152.86, the court
cannot consider individual factors about a child or his background, cannot have a
say in how often a child must register or where he must register, or determine how
publication of the offense might affect rehabilitation. An SYO offender remains
within the jurisdiction of the juvenile court, but R.C. 2152.86 removes the
juvenile court’s ability to exercise its most important role in rehabilitation.
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Fundamental fairness requires that the judge decide the appropriateness of any
such penalty.
{¶ 79} R.C. 2152.86’s automatic imposition of an adult punishment—
lifetime reporting and notification—stands in contrast to the R.C. 2152.14 process
for invoking the adult portion of the sentence in an SYO disposition. R.C.
2152.14 installs procedural protections for juveniles before the adult portion of
their disposition can be invoked. For instance, the juvenile must commit a further
bad act while in custody before the invocation process can begin. A request must
be filed showing that there is reasonable cause to believe that the “person
committed an act that is a violation of the rules of the institution and that could be
charged as any felony or as a first degree misdemeanor offense of violence if
committed by an adult” or that the person “has engaged in conduct that creates a
substantial risk to the safety or security of the institution, the community, or the
victim.” R.C. 2152.14(A)(2)(a) and (b).
{¶ 80} Once the request is filed, the adult portion of the sentence cannot
be invoked without a public hearing. R.C. 2152.14(D). The juvenile has a right
to counsel that may not be waived and the right to present evidence on his own
behalf, “including evidence that [he] has a mental illness or is a mentally retarded
person.” Id. If the person submits evidence that he has a mental illness or is
mentally retarded, the court must consider that evidence in determining whether
to invoke the adult portion of the SYO dispositional sentence.
{¶ 81} Further, pursuant to R.C. 2152.14(E)(1), the court must find by
clear and convincing evidence not only that the person serving the juvenile
portion of an SYO dispositional sentence engaged in the conduct—the additional
bad act—he is accused of, but also that the conduct “demonstrates that [he] is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.”
And under R.C. 2152.14(E)(2), the juvenile court has the discretion to “modify
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the adult sentence the court invokes to consist of any lesser prison term that could
be imposed for the offense.”
{¶ 82} Thus, for the bulk of Ohio’s SYO scheme, the juvenile court retains
discretion to deal individually with juvenile offenders, and procedural protections
are in place before adult punishment can be invoked. Even after additional bad
acts by a juvenile, the judge has the discretion not to invoke the adult sentence, or
to lessen the one imposed at the time of the juvenile disposition. On the other
hand, even for a juvenile who is amenable to rehabilitation and commits no
further bad acts during his juvenile disposition, the adult consequences of
registration and notification attach immediately. PRQJORs have no right to
present evidence or even be heard on the issue of their classification.
{¶ 83} Once the juvenile court makes its SYO determination, the juvenile
judge never gets an opportunity to determine whether the juvenile offender has
responded to rehabilitation or whether he remains a threat to society. Even if the
adult portion of his sentence is not invoked, the sex-offender classification is
irrevocable. The timing of the classification—immediately upon the imposition
of SYO status—leaves no room for the judge to determine whether the juvenile
offender has been rehabilitated. And the automatically imposed punishment lasts
far longer than the jurisdiction of the juvenile court.
{¶ 84} Again, we are dealing with juveniles who remain in the juvenile
system through the decision of a juvenile judge—a decision made through the
balancing of the factors set forth in R.C. 2152.12(B)—that the juvenile at issue is
amenable to the rehabilitative purpose of the juvenile system. The protections
and rehabilitative aims of the juvenile process must remain paramount; we must
recognize that juvenile offenders are less culpable and more amenable to reform
than adult offenders.
{¶ 85} The requirement in R.C. 2152.86 of automatic imposition of Tier
III classification on a juvenile offender who receives an SYO dispositional
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sentence undercuts the rehabilitative purpose of Ohio’s juvenile system and
eliminates the important role of the juvenile court’s discretion in the disposition of
juvenile offenders and thus fails to meet the due process requirement of
fundamental fairness. In D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d
209, ¶ 59, we held that because of the central role of the juvenile judge in a
juvenile’s rehabilitative process, fundamental fairness did not require the same
jury-trial rights for juveniles as we required for adults in Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470. In this case, we determine that fundamental
fairness is not a one-way street that allows only for an easing of due process
requirements for juveniles; instead, fundamental fairness may require, as it does
in this case, additional procedural safeguards for juveniles in order to meet of the
juvenile system’s goals of rehabilitation and reintegration into society.
Conclusion
{¶ 86} R.C. 2152.86 creates a classification of juvenile offenders called
public-registry-qualified juvenile-offender registrants. R.C. 2152.86 imposes
upon that classification of juvenile offenders an automatic, lifetime requirement
of sex-offender registration and notification, including placement on a public
Internet registry. Such requirements are imposed upon juveniles without the
participation of a juvenile judge. We conclude that R.C. 2152.86 is
unconstitutional because the penalty it imposes violates the prohibitions against
cruel and unusual punishment contained in the Eighth Amendment to the United
States Constitution and the Ohio Constitution, Article I, Section 9. Further, we
hold that R.C. 2152.86 is unconstitutional because the procedure involved in
imposing the punishments violates the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and the Ohio Constitution, Article I,
Section 16.
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{¶ 87} Accordingly, we reverse the judgment of the court of appeals and
remand the cause to the trial court for further proceedings in accordance with this
opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE
BROWN, JJ., concur.
O’DONNELL and CUPP, JJ., dissent.
__________________
O’DONNELL, J., dissenting.
{¶ 88} Respectfully, I dissent.
{¶ 89} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952
N.E.2d 1108, I expressed my view in a dissenting opinion, that consistent with
prior holdings of this court, the registration and notification requirements of S.B.
10 are civil in nature and part of a regulatory scheme designed to protect the
public from known sex offenders. Id. at ¶ 24-61. Because application of those
requirements to juveniles pursuant to R.C. 2152.86 does not alter S.B. 10’s
nonpunitive purpose, that view also applies to juveniles such as C.P.
Factual and Procedural Background
{¶ 90} In 2005, the state of Utah filed a petition charging C.P., then age
11, with destruction of property, sodomy, aggravated sexual abuse of a child, and
rape of a child. The three latter charges stemmed from allegations that when C.P.
was nine and ten years old, he had engaged in sexual conduct with his half-
sister—three years younger—for several years. That conduct included making his
sister perform strip acts, forcing her to perform and receive oral sex, exposing
himself, and forcibly raping her. C.P. admitted to the charges of destruction of
property, sodomy, and sexual abuse of a child, a charge which the state had
reduced from aggravated sexual abuse of a child. The Utah juvenile court placed
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C.P. in the temporary custody of the Division of Child and Family Services for
foster care, committed him to the Department of Juvenile Justice Services for 30
days, and ordered him to obtain sex-specific counseling. During a
neuropsychological evaluation conducted in 2006, C.P. admitted the allegations
involving his half-sister and also admitted to having “touched five or six other
young girls inappropriately.”
{¶ 91} While in foster care in Utah, C.P. left his second foster home after
being accused of touching a girl’s breast at school. He was then placed in the
Youth Track residential program for juvenile sex offenders, where he received
inpatient residential care from June 1, 2006, through November 3, 2008, when he
returned home to live with his mother. C.P. participated in outpatient counseling,
but discontinued taking his medications because he did not like how they made
him feel.
{¶ 92} Thereafter, C.P.’s parents agreed that he might benefit from living
with his father in Ohio, and in June 2009, he moved to Ohio. Within nine days of
his arrival, C.P., then age 15, secluded himself with his six-year-old nephew and
orally and anally raped him.
{¶ 93} The day after the incident, the state filed a complaint against C.P.
in the Athens County Juvenile Court, charging him with two counts of child rape
and one count of kidnapping with sexual motivation, each count a first-degree
felony if committed by an adult. The state filed a motion pursuant to R.C.
2152.10(A)(1)(b), which sought to transfer jurisdiction of the case to the common
pleas court to prosecute C.P. as an adult. After holding an amenability hearing,
the trial court denied the state’s motion. The state then obtained an indictment
against C.P. that contained a serious-youth-offender (“SYO”) specification for
each count.
{¶ 94} C.P. subsequently entered an admission to each charge in the
indictment, and due to his age and the nature of his offenses, he was eligible for a
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discretionary SYO dispositional sentence pursuant to R.C. 2152.11(D)(2)(b). The
court found him to be a delinquent child and designated him an SYO in relation to
each offense. It committed C.P. to the Ohio Department of Youth Services for
concurrent commitments on each count of a minimum period of three years and a
maximum period not to exceed age 21. As part of the SYO disposition, the court
imposed three concurrent five-year prison terms that were stayed pending C.P.’s
successful completion of his juvenile dispositions. The court further classified
C.P. as a public-registry-qualified juvenile-offender registrant (“PRQJOR”)
pursuant to R.C. 2152.86(A)(1) and a Tier III sex-offender/child-victim offender
pursuant to R.C. 2152.86(A)(1), and advised him of the duties imposed by that
statute.
{¶ 95} C.P. appealed his classification as a Tier III offender and PRQJOR
to the Fourth District Court of Appeals, arguing that R.C. 2152.86 violated his
rights to due process and equal protection, as well as his right against cruel and
unusual punishment. The court of appeals affirmed the judgment of the trial
court.
The Majority Opinion
{¶ 96} The majority reverses the judgment of the court of appeals, finding
that the registration and notification requirements of R.C. 2152.86 constitute cruel
and unusual punishment in violation of the Eighth Amendment to the United
States Constitution and the Ohio Constitution, Article I, Section 9. The majority
further finds that because the statute imposes those requirements automatically
rather than at the discretion of a juvenile judge, it also violates the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and the
Ohio Constitution, Article I, Section 16.
{¶ 97} The Ohio General Assembly passed 2007 Am.Sub.S.B. No. 10
(“S.B. 10”) in accordance with legislation enacted by the United States Congress
in an effort to create a national, uniform system of sex-offender registration.
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Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 25.
Amended by S.B. 10, R.C. 2950.02(B) declares the intent of the General
Assembly “to protect the safety and general welfare of the people of this state” in
providing for the registration and community notification of certain sex offenders,
and it specifically included public-registry-qualified juvenile-offender registrants,
such as C.P., among them. Id. It is undisputed that the General Assembly is
“ ‘the ultimate arbiter of public policy’ ” and the only branch of government
charged with fulfilling that role. Arbino v. Johnson & Johnson, 116 Ohio St.3d
468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 21, quoting State ex rel. Cincinnati
Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d
126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. And prior to this court’s
abandonment of precedent in the majority opinion in Williams, we have
historically construed registration statutes as part of a civil regulatory scheme and
nonpunitive in nature.
{¶ 98} Accordingly, in my view, the General Assembly constitutionally
enacted R.C. 2152.86 and imposed registration and notification requirements on
certain juvenile sex offenders based on concerns for public safety and public
welfare. Those requirements are not punitive and do not offend the Constitution.
To the extent that any policy concern exists regarding the registration of juvenile
sex offenders, it is within the sole province of the legislature to address that issue.
R.C. 2152.86 is not Punitive
{¶ 99} In State ex rel. Ohio Congress of Parents & Teachers v. State Bd.
of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20, 73, this
court reiterated that the constitutionality of a statute starts with a presumption of
constitutionality based in part upon this court’s deference to the legislative branch
on matters of public policy. The strong presumption of constitutionality is further
supported by the requirement that before we can declare a statute unconstitutional,
it must appear beyond a reasonable doubt that the legislation and constitutional
38
January Term, 2012
provisions are clearly incompatible. State v. Carswell, 114 Ohio St.3d 210, 2007-
Ohio-3723, 871 N.E.2d 547, ¶ 7. With respect to determining whether a
registration statute is punitive, “ ‘only the clearest proof could suffice’ ” to
override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty. United States v. Ward, 448 U.S. 242, 249, 100
S.Ct. 2636, 65 L.Ed.2d 742 (1980), quoting Flemming v. Nestor, 363 U.S. 603,
617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
{¶ 100} The majority opinion begins with the premise that R.C. Chapter
2950 is punitive, and then it applies the two-part analysis discussed by the
Supreme Court in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011, 2021, 176
L.Ed.2d 825 (2010). Graham held that a juvenile offender’s sentence of life
imprisonment without the possibility of parole for convictions of non-homicide
crimes violated the Eighth Amendment to the United States Constitution. The
majority opinion today relies on Graham to conclude that the registration and
notification requirements of R.C. 2152.86 constitute cruel and unusual
punishment.
{¶ 101} The majority bases its conclusion on several factors: the lack of a
national consensus favoring the publication of juvenile sex offenders’ personal
information, its belief that juvenile sex offenders are less culpable and more
capable of change than adult sex offenders, and its position that the requirements
of the statute are especially harsh because a juvenile offender will begin
adulthood with the stigma associated with being labeled a sex offender, which in
turn will hamper education, relationships, and employment opportunities. The
majority further finds that R.C. 2152.86 does not advance penological goals.
Under the guise of exercising the independent judgment permitted by the test in
Graham, the majority impermissibly supplants the judgment of the General
Assembly with its own beliefs.
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{¶ 102} Registration has historically been viewed as a regulatory measure
and not as a form of punishment. See, e.g., R.W. v. Sanders, 168 S.W.3d 65, 69
(Mo.2005), citing Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2
L.Ed.2d 228 (1957); In re Richard A., 946 A.2d 204, 213 (R.I.2008) (sex-offender
registration requirement for juveniles did not constitute punishment and was
found constitutional). In Smith v. Doe, the court rejected analogies between sex-
offender registration and “shaming punishments of the colonial period.” 538 U.S.
84, 97, 123 S.Ct. 1140, 155 L.E.2d 164 (2003). “Our system does not treat
dissemination of truthful information in furtherance of a legitimate governmental
objective as punishment.” Id. at 98.
{¶ 103} As applied to juveniles, courts have rejected the argument that
statutes subjecting juveniles to public registration are punitive because of the
unpleasant consequences that may flow from registration or the length of time a
juvenile may be required to report. In United States v. Juvenile Male, the Ninth
Circuit Court of Appeals recently rejected the conclusion reached here by the
majority, determining that the registration and notification requirements imposed
by the federal Sex Offender Registration and Notification Act (“SORNA”) on
juveniles do not constitute cruel and unusual punishment. 670 F.3d 999, 1010-
1011 (2012). After noting that “[t]he bar for cruel and unusual punishment is
high,” the court went on to explain:
Although defendants understandably note that SORNA
may have the effect of exposing juvenile defendants and their
families to potential shame and humiliation for acts committed
while still an adolescent, the statute does not meet the high
standard of cruel and unusual punishment. The requirement that
juveniles register in a sex offender database for at least 25 years
because they committed the equivalent of aggravated sexual abuse
40
January Term, 2012
is not a disproportionate punishment. These juveniles do not face
any risk of incarceration or threat of physical harm. In fact, at least
two other circuits have held that SORNA’s registration
requirement is not even a punitive measure, let alone cruel and
unusual punishment. See United States v. May, 535 F.3d 912, 920
(8th Cir.2008) ("SORNA’s registration requirement demonstrates
no congressional intent to punish sex offenders"); see also United
States v. Young, 585 F.3d 199, 204-05 (5th Cir.2009).
Id.{¶ 104} In the case of In re Ronnie A., the Supreme Court of South
Carolina reiterated its prior holding that “sex offender registration, regardless of
the length of time, is non-punitive” and saw no reason to distinguish juvenile sex
offenders. 355 S.C. 407, 409, 585 S.E.2d 311 (2003). Although the juvenile at
issue did not have to be placed on the public registry because he was under 12
years of age at the time of his adjudication, the statute being challenged, S.C.
Code Ann. 23-3-490, required public registration for offenders older than 12 for
certain offenses.
{¶ 105} Additionally, although the Supreme Court of South Dakota struck
down that state’s public-registration statute on equal protection grounds, it
reiterated its position that public registration is not punitive. See In re Z.B., 2008
S.D. 108, 757 N.W.2d 595, ¶ 24. “Such measures are not penal; they are
regulatory.” Id. South Dakota amended its sex-offender registration statute in
2010, and the current version still requires juveniles over the age of 14 to publicly
register as sex offenders for certain offenses. S.D. Codified Laws 22-24B-2.
{¶ 106} Although the majority finds juvenile sex offenders less culpable
than their adult counterparts, juveniles commit more than 25 percent of all sex
offenses and more than 35 percent of all sex offenses against children. Finkelhor,
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Ormrod & Chaffin, Juveniles Who Commit Sex Offenses Against Minors, Office
of Juvenile Justice and Delinquency Preventions, Juvenile Justice Bulletin 3
(Dec.2009). In fact, C.P. was a repeat offender, and all of his victims were other
juveniles; by invalidating R.C. 2152.86, as applied to juveniles such as C.P., the
majority leaves the public unaware of a significant number of sex offenders who
are capable of reoffending, directly contrary to the intent of the General Assembly
and contrary to our precedent and determinations of constitutionality that exist in
our sister states.
{¶ 107} Moreover, this court has previously recognized that an offense
committed as a juvenile may have adverse consequences on the offender as an
adult. In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766,
we held that a juvenile adjudication could serve as one of the five prior similar
offenses necessary to enhance a charge of operating a motor vehicle while under
the influence of alcohol because R.C. 2901.08 expressly includes juvenile
adjudications among the offenses that may be used for penalty enhancement. We
specifically noted that “R.C. 2901.08 did not change [the] juvenile adjudication; it
merely added another type of legal violation as an aggravating offense under R.C.
4511.19(G)(1)(d).” Id. at ¶ 17. Similarly, the requirements of R.C. 2152.86 do
not convert a PRQJOR’s adjudication into a criminal one.
{¶ 108} With respect to the argument that public registration constitutes
punishment because of the potential for adversely affecting a juvenile’s future
employment, the Supreme Court of the United States has held occupational
debarment to be regulatory, and therefore civil in nature. See, e.g., Hudson v.
United States, 522 U.S. 93, 104-105, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); De
Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960);
Hawker v. New York, 170 U.S. 189, 196, 18 S.Ct. 573, 42 L.Ed. 1002 (1898).
{¶ 109} Nor is R.C. 2152.86 at odds with the goals promoted by R.C.
2152.01. The legislative intent underlying the enactment of R.C. 2152.86 was to
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protect the public, and that goal is shared by R.C. 2152.01(A). The majority
questions whether R.C. 2152.86 actually furthers public interest and public safety
because juvenile judges have no discretion in determining if a juvenile is
dangerous or what level of registration or notification would be adequate.
“Questions concerning the wisdom of legislation are ‘for the legislature, and
whether the court agrees with it in that particular or not is of no consequence.’ ”
Butler v. Jordan, 92 Ohio St.3d 354, 376, 750 N.E.2d 554 (2001) (Cook, J.,
concurring in judgment), quoting State Bd. of Health v. Greenville, 86 Ohio St. 1,
20, 98 N.E. 1019 (1912).
{¶ 110} R.C. 2152.86 also does not frustrate the purpose of Juv.R. 37(B),
which is to protect children by keeping their juvenile court records confidential.
First, the proceedings in juvenile court maintain their confidential status because
the obligation to register does not arise until the successful completion of the
juvenile disposition, see R.C. 2152.86(A)(2); thus, because the welfare of “a
child” is no longer at stake, the underlying interest in confidentiality no longer
exists. Second, the confidentiality requirement imposed by Juv.R. 37(B) is not
applicable when statutes provide for disclosure; thus, R.C. 2152.86 supersedes the
confidentiality provision of Juv.R. 37.
{¶ 111} For the foregoing reasons, the requirements of R.C. 2152.86 are
not punitive and do not constitute cruel and unusual punishment. The General
Assembly enacted R.C. 2152.86 pursuant to its authority and with the intent to
protect the safety and welfare of the public. Moreover, it cannot be disputed that
preventing crime “persists undiluted in the juvenile context.” Schall v. Martin,
467 U.S. 253, 264, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). Thus, the statute is
not unconstitutional.
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R.C. 2152.86 Meets the Requirements of Due Process
and Fundamental Fairness
{¶ 112} Courts have rejected challenges to registration statutes based on
alleged violations of due process. In Connecticut Dept. of Pub. Safety v. Doe, 538
U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), the Supreme Court construed
Connecticut’s version of Megan’s Law and held that procedural due process did
not entitle a convicted sex offender to a hearing on current dangerousness before
requiring registration. The court found it unnecessary to determine whether
registration deprived offenders of a liberty interest “because even assuming,
arguendo, that [an offender] has been deprived of a liberty interest, due process
does not entitle him to a hearing to establish a fact that is not material under the
Connecticut statute.” Id. at 7. The court further explained that “[persons] who
assert a right to a hearing under the Due Process Clause must show that the facts
they seek to establish in that hearing are relevant under the statutory scheme.” Id.
at 8. See also People ex rel. Birkett v. Konetski, 233 Ill.2d 185, 330 Ill.Dec. 761,
909 N.E.2d 783 (2009) (rejecting the argument that due process requires jury trial
before a court may impose registration requirements on juveniles); People ex rel.
C.B.B., 75 P.3d 1148 (Colo.App.2003) (“C.B.B. has no procedural due process
right to a hearing to prove a fact immaterial to the state’s statutory scheme before
being required to register as a sex offender under the Act”).
{¶ 113} Rejecting a similar argument, the Ninth Circuit in United States v.
Juvenile Male, explained:
Additional process is only necessary where it gives a sex offender
the ability to prove or disprove facts related to the applicability of
the registration requirement. In other words, where “the law’s
requirements turn on an offender’s conviction alone—a fact that a
convicted offender has already had a procedurally safeguarded
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opportunity to contest”—no additional process is required for due
process. Doe v. Tandeske, 361 F.3d 594, 596 (9th Cir.2004). In
this case, juvenile sex offenders are required to register on the
basis of their adjudicated juvenile status, which explicitly triggers
SORNA’s requirements under 42 U.S.C. § 16913. Thus, because
defendants are not challenging whether they received adequate due
process in their juvenile proceedings, there is no basis for a
procedural due process claim.
Further, adequate procedural safeguards at the conviction
stage are sufficient to obviate the need for any additional process at
the registration stage.
Juvenile Male, 670 F.3d at 1014.
{¶ 114} As applied here, C.P. cannot establish a due process violation
based on the fact that R.C. 2152.86 imposes automatic registration, as opposed to
registration imposed by an exercise of judicial discretion, because whether a
juvenile sex offender has been sufficiently rehabilitated is not material to the
statute’s operation; it is the adjudication that triggers the duty to register. There is
no constitutional requirement that juveniles must receive greater due process than
adults.
{¶ 115} Discretion is a matter of grace and not of right. Thus, the General
Assembly was within its authority to impose automatic registration on juvenile
sex offenders when it enacted R.C. 2152.86. Accordingly, the statute meets the
requirements of due process and does not offend notions of fundamental fairness.
Conclusion
{¶ 116} R.C. 2152.86 is constitutional and does not violate the prohibition
against cruel and unusual punishment contained in the Eighth Amendment to the
United States Constitution or the Ohio Constitution, Article I, Section 9, nor does
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it violate the Due Process Clause of the Fourteenth Amendment to the United
States Constitution or the Ohio Constitution, Article I, Section 16.
{¶ 117} The General Assembly enacted R.C. 2152.86 pursuant to its
proper authority and in furtherance of the legitimate goals of public safety and
public welfare. It is not the function of this court to substitute its judgment for
that of the General Assembly.
{¶ 118} For these reasons, I would affirm the judgment of the court of
appeals and hold that R.C. 2152.86 is constitutional.
_________________
CUPP, J., dissenting.
{¶ 119} For a violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment, as a general matter, the punishment in question
must be “grossly disproportionate” to the crime’s severity. See Graham v.
Florida, ___ U.S. ___, 130 S.Ct. 2011, 2037, 176 L.Ed.2d 825 (2010) (Roberts,
C.J., concurring in judgment) (the Eighth Amendment does not require strict
proportionality between the crime and the sentence, but forbids only extreme
sentences that are grossly disproportionate to the crime). This “narrow
proportionality” standard is highly deferential and strongly favors upholding a
punishment that has been imposed as authorized by a particular statute. It sets a
very high bar for a challenger claiming a violation of the Eighth Amendment’s
ban to overcome. Judges do not possess blanket authority to second guess
decisions of legislatures or sentencing courts. Id. Successful Eighth Amendment
challenges to noncapital sentences are “ ‘exceedingly rare.’ ” Id., quoting
Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).
{¶ 120} This court has similarly recognized the high bar a challenger
asserting cruel and unusual punishment must overcome. In State v. Chaffin, 30
Ohio St.2d 13, 17-18, 282 N.E.2d 46 (1972), this court upheld the imposition of a
20- to 40-year prison sentence for a defendant convicted of selling cannabis,
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rejecting the defendant’s contention that his punishment was cruel and unusual.
Paragraph three of the Chaffin syllabus held that a punishment is not cruel and
unusual unless the punishment is “so greatly disproportionate to the offense as to
shock the sense of justice of the community.” See also State v. Hairston, 118
Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 13-14 (reiterating the
validity of the “gross disproportionality” standard and acknowledging that it can
be met only in a very limited number of cases).
{¶ 121} When reviewing a particular juvenile punishment for an Eighth
Amendment violation, an offender’s status as a juvenile must be taken into
account because juveniles are typically less culpable than adults due to their youth
and immaturity. Graham, ___ U.S. at ___, 130 S.Ct. at 2039-2040, 176 L.Ed.2d
825 (Roberts, C.J., concurring in judgment). However, the general standards of
gross disproportionality and substantial deference to the legislative judgment
expressed within the relevant statute are not to be abandoned merely because the
offender is a juvenile.
{¶ 122} I dissented in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108, because I could not find, as the majority did, that certain
portions of 2007 Am.Sub.S.B. No. 10 (“S.B. 10”) are punitive in nature for
purposes of a retroactivity analysis pursuant to the Ohio Constitution, Article II,
Section 28. I acknowledge, however, that Williams must be regarded as
established precedent on the issues it resolved. Further, as the majority opinion in
this case recognizes, the United States Supreme Court in Graham recently held
that the Eighth Amendment’s prohibition of the infliction of cruel and unusual
punishment is violated when a juvenile offender who did not commit homicide
receives a sentence of life imprisonment without possibility of parole.
{¶ 123} But the sex-offender registration and notification provisions at
issue in this case are so significantly different from the punishment at issue in
Graham—lifetime imprisonment with no chance of parole, with its fundamental
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loss of liberty—that I am left wondering how the two can possibly be considered
comparable for constitutional purposes.
{¶ 124} Although the provisions of R.C. 2152.86 subjecting certain
juveniles to automatic lifetime registration and notification requirements, with a
potential for reclassification after 25 years, may be viewed as highly burdensome
or even onerous, they do not reach that high level of punishment that the United
States Supreme Court has held categorically unconstitutional. The punishments
held by the United States Supreme Court to violate the Eighth Amendment ban
when applied to juveniles are the death penalty, Roper v. Simmons, 543 U.S. 551,
125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and lifetime imprisonment without the
possibility of parole for serious, but non-homicide, crimes. Graham, ___ U.S.
___, 130 S.Ct. 2011, 176 L.Ed.2d 825. I do not find the requirements at issue
here pertaining to registration and notification to rise to such a level as to be even
remotely comparable.
{¶ 125} The statutory requirements at issue apply only to a small and
select category of juvenile offenders—those who have committed the most
serious sex offenses after reaching the age of 14 and who have ultimately received
a disposition as a serious youthful offender (“SYO”) after all the procedural steps
of the SYO process have been fulfilled. The General Assembly has determined
that these offenders pose a special danger to public safety that separates them
from all other juvenile offenders. R.C. 2152.86 assigns only offenders of this
type to the special category of public-registry-qualified juvenile-offender
registrants, or PRQJORs.
{¶ 126} Under R.C. 2152.86, all juveniles who commit sex offenses
before their 14th birthday, those juvenile sex offenders over the age of 14 who
commit less serious offenses than C.P. committed, and those offenders who have
not received a SYO disposition are not considered PRQJORs. R.C.
2152.86(A)(1). The General Assembly’s differentiations in this regard are not
48
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unreasonable in light of its objective of protecting the public, and the
determinations are entitled to substantial deference.
{¶ 127} Justice O’Donnell’s dissenting opinion makes clear that C.P.’s
offenses, if committed by an adult, would have potentially resulted in convictions
for three first-degree felonies and a very long prison sentence, thus highlighting
the seriousness of C.P.’s conduct that the majority opinion merely mentions in
passing. C.P.’s status as a PRQJOR is a direct consequence of his own actions.
{¶ 128} The Graham court majority’s decision to adopt a categorical rule
as to the particular issue raised in that case was driven by two critical
considerations. First, juvenile offenders who did not kill or intend to kill have a
“twice diminished moral culpability,” Graham, ___ U.S. at ___, 130 S.Ct. at
2027, 176 L.Ed.2d 825, because (1) they are juveniles, who in general lack
maturity, are vulnerable to negative influences, and are more capable of change
than adults, id. at 2026, and (2) their offenses are not deserving of the most
serious forms of punishment, which should be reserved for adults who commit
murder. Id. at 2026-2027. Second, sentences of life in prison without parole
“share some characteristics with death sentences that are shared by no other
sentences,” including irrevocability, and therefore must be regarded as “especially
harsh punishment for a juvenile.” Id. at 2027 and 2028. The court in Graham
thus concluded that the high bar that must be overcome for a punishment to be
deemed cruel and unusual was met largely because of the exceptionally harsh
punishment a sentence of life imprisonment without parole entails.
{¶ 129} In the present case, however, the majority unjustifiably relies on
the offender’s juvenile status to minimize the substantial bar the challenger must
surmount to establish cruel and unusual punishment. In place of that substantial
bar, the majority substitutes a threshold that bears no resemblance to the threshold
applied in the review of the death penalty in Roper or the review of the sentence
of life imprisonment with no possibility of parole in Graham. The punishment
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under scrutiny in Graham deprived the juvenile offender in that case of “the most
basic liberties without giving hope of restoration” because the offender was to be
imprisoned for life with absolutely no prospect of parole. Id. at 2027. In contrast,
most courts have held that sex-offender notification and registration requirements
of the type at issue in this case are not even “punishment” for purposes of the
Eighth Amendment, even if the requirements do place heavy burdens on an
offender. See United States v. Juvenile Male, 670 F.3d 999, 1010-1011 (9th
Cir.2012), and other cases cited and discussed in Justice O’Donnell’s dissent.
The sex-offender notification and registration requirements at issue here, while
burdensome, simply do not approach the severity of the punishments at issue in
Graham or Roper.
{¶ 130} The majority opinion, unfortunately, fails to acknowledge this
fundamental difference, even as it repeatedly compares the requirements in this
case to the punishment of lifetime imprisonment in Graham. Instead, it appears
to stage-manage the Graham factors in order to reach its own preferred policy
result.
{¶ 131} In so doing, the majority opinion completely loses sight of the
overriding meaning of the standards applicable in cases of this nature. Although
the registration and public-disclosure provisions at issue in this case are criticized
by some as imprudent and too harsh, a demonstration of simple disproportionality
is not enough to support a finding of an Eighth Amendment violation—the
disproportionality must be great. Taking into account the very serious offenses
C.P. committed, as delineated in Justice O’Donnell’s dissent, the
disproportionality here is not of such a magnitude that it contravenes the
constitutional proscription against cruel and unusual punishment.
{¶ 132} Additionally, I am unable to agree with the majority’s
determination that R.C. 2152.86 violates due process principles. The majority’s
finding of fundamental unfairness fails to take into account that PRQJORs such as
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January Term, 2012
C.P. reach that status only by undergoing a rigorous narrowing process designed
to exclude most juvenile sex offenders. R.C. 2152.13. The statute at issue
provides adequate procedural safeguards for those offenders who are not
excluded, and who are ultimately assigned PRQJOR status, to satisfy due process
concerns.
{¶ 133} Finally, the majority’s analysis leaves unanswered a multitude of
additional issues that its conclusions generate. As a result, the trial court will be
forced to guess what is actually required in this case upon remand. I note just two
of these unanswered questions.
{¶ 134} First, the majority opinion concludes that the lack of discretion
afforded to a juvenile judge by R.C. 2152.86 in assigning the PRQJOR
designation is a significant infirmity in the statute bearing upon its
constitutionality. The syllabus states that the statutory provisions are
unenforceable only “[t]o the extent that” R.C. 2152.86 “imposes automatic,
lifelong registration and notification requirements on juvenile sex offenders tried
within the juvenile system.” (Emphasis added.) Does this mean that a juvenile
judge may now, notwithstanding the statute, exercise discretion as to whether to
impose sex-offender notification and reporting requirements on PRQJOR-status
offenders such as C.P.? If so, what are the boundaries of that discretion?
{¶ 135} Second, another constitutional infirmity of the statute, according
to the majority opinion, is that the registration and notification requirements are
lifelong (with a possibility for adjustment after 25 years). May a juvenile judge in
the exercise of discretion now impose requirements of shorter duration on
offenders such as C.P. and overcome the constitutional deficiencies? If so, what
duration will satisfy the majority’s concerns?
{¶ 136} It is not just the juvenile judge in this particular case who must
decipher the meaning of this court’s analysis. This decision will also affect other
juvenile offenders and the juvenile judges who will preside over their cases. This
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court apparently leaves it to those judges to unravel the mysteries of this
decision’s application. Moreover, should the General Assembly seek to revise the
statute to conform with this court’s decision, it will have a difficult time
discerning the new Eighth Amendment boundaries that the decision creates.
{¶ 137} I am unable to agree that the provisions of R.C. 2152.86 at issue
violate either the United States or Ohio constitutional prohibitions against cruel
and unusual punishment and the requirements of due process. I would hold that
the provisions under consideration survive constitutional scrutiny and would
affirm the judgment of the court of appeals. Therefore, I respectfully dissent.
__________________
C. David Warren, Athens County Prosecuting Attorney, and George
Reitmeier, Assistant Prosecuting Attorney, for appellee, state of Ohio.
Timothy Young, State Public Defender, and Brooke M. Burns, Assistant
Public Defender, for appellant, C.P.
Nadia Seeratan, urging reversal for amici curiae National Juvenile
Defender Center, Association for the Treatment of Sexual Abusers, Central
Juvenile Defender Center, Juvenile Justice Coalition, Ohio Justice and Policy
Center, Dr. Elizabeth J. Letourneau, and Dr. Morris Jenkins.
Kim Tandy, urging reversal for amicus curiae Children’s Law Center, Inc.
Gamso, Helmick & Hoolahan and Jeffrey M. Gamso; and James L.
Hardiman and Carrie L. Davis, urging reversal for amicus curiae American Civil
Liberties Union of Ohio Foundation, Inc.
Michael DeWine, Attorney General, Benjamin C. Mizer, Solicitor
General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Laura
Eddleman Heim, Deputy Solicitor, urging affirmance for amicus curiae Ohio
Attorney General.
______________________
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