In the Interest of T.H., Minor Child

IN THE SUPREME COURT OF IOWA
No. 16–0158
Filed June 15, 2018
IN THE INTEREST OF T.H.,
Minor Child.
T.H., Minor Child,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, Brian L.
Michaelson, Senior Judge.
A juvenile statutorily required to register as a sex offender
challenges the provision as cruel and unusual punishment under the
Iowa and United States Constitutions. DECISION OF COURT OF
APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane,
Sioux City, and Kathryn C. Stevens, Public Defender, Sioux City (until
withdrawal) for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant
Attorney General, and Diane Murphy, Assistant County Attorney, for
appellee.
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CADY, Chief Justice.
In this appeal, we must decide if substantial evidence was
presented to establish that a juvenile committed a sex offense by force
and whether the mandatory sex offender registry statute for certain
juvenile sex offenders violates the prohibition against cruel and unusual
punishment under either the Iowa or United States Constitution. The
juvenile court found the juvenile committed a sex offense by force and
ordered him to register as a sex offender. We transferred the appeal to
the court of appeals. It found substantial evidence that the juvenile
committed a sex offense by force and that the sex offender registry
requirements imposed by law did not violate the prohibition against cruel
and unusual punishment under either the Iowa or United States
Constitution. On our further review from the court of appeals decision,
we affirm the decision of the juvenile court and the decision of the court
of appeals.
I. Factual Background and Proceedings.
On or about July 15, 2015, T.H., a fourteen-year-old boy, knocked
on the door of I.N., a sixteen-year-old girl whom T.H. had known for a few
years. I.N. answered the door, and T.H. told her he had a gift for her. He
told I.N. he had ordered a ring and wanted to give it to her. I.N. asked
her mother if she could talk with T.H. on the front porch, and her mother
gave her permission. Once the two were outside, they talked for a few
minutes, and T.H. began to kiss I.N., over her objections. T.H. then sat
on the porch and asked I.N. to join him. She initially refused, but T.H.
continued to insist.
I.N. sat down on the porch next to T.H., who then exposed his
penis and shoved the back of I.N.’s head downward toward it. I.N.
protested repeatedly, and as she said “no,” T.H.’s penis entered her
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mouth. T.H. kept his hand on I.N.’s head so she could not raise her
head. I.N. then bit T.H.’s penis in order to free herself, prompting T.H. to
release her head. T.H. asked her why she had bit him, and I.N.
responded that she did not want to do this and had said no. I.N. slapped
T.H. in the face, and T.H. went home.
I.N. ran inside and told her mother what had happened. I.N.’s
mother called the police. I.N. was interviewed by the police and a few
days later interviewed by the Child Advocacy Center. The police also
interviewed T.H. Although T.H. initially denied the incident, after an
officer falsely represented to him that there was surveillance footage of
the encounter, T.H. admitted to forcing I.N. to perform oral sex and that
she bit him in the process. After the police interview, without an officer
in the room, T.H. wrote an apology letter to I.N. He wrote,
Dear [I.N.],
I sorry for forcing you to suck my penis. I’m so sorry.
If you forgive me, I’ll be happy. So just remember I still care
about you.
Love, [T.H.]
Since the incident, I.N. has experienced recurring nightmares about the
incident and is wary around boys who resemble T.H. She also has had
difficulty participating in school when the topic of sexual abuse is
discussed.
On July 21, 2015, the State filed a delinquency petition alleging
the delinquency of T.H. based on a number of incidents. The State
alleged T.H. committed sexual abuse in the third degree by performing a
sex act by force or against the will of I.N. in violation of Iowa Code section
709.4(1)(a) (2016). Based on domestic incidents that occurred in late
June 2015, the State also alleged two counts of simple assault for
punching and choking his mother, one count of simple assault for
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punching his brother, and one count of criminal mischief in the fifth
degree for throwing a mop through a window of his residence.
The juvenile court held an adjudicatory hearing during which I.N.
testified about the incident, as well as the detective who conducted the
investigation. Following the witnesses’ testimonies, the juvenile court
dismissed the four counts relating to the domestic incidents. On
December 11, the juvenile court adjudicated T.H. delinquent for
performing a sex act by force and against the will of I.N. in violation of
Iowa Code section 709.4(1)(a). The court, therefore, found that T.H. had
committed sexual abuse in the third degree and that his offense was
committed with force.
The court soon thereafter issued its dispositional order, which
discussed T.H.’s mental health history, past behavioral problems, and
prior rehabilitation efforts by the State. T.H.’s father has never played a
role in his life, and his mother has been married three times. Her second
husband was an alcoholic, and her third husband abused her,
sometimes in T.H.’s presence. After the third husband left the home,
T.H. kept in contact with him, as he provided drugs to T.H. and his
friends. Currently, the man who is living in T.H.’s home is a multistate
offender with prior arrests for narcotics possession, domestic violence,
and child endangerment. T.H.’s mother has a history of substance
abuse, although she has been sober for over seven years. She currently
works the overnight shift at Wal-Mart. From 2004 to 2008, T.H. lived
with his maternal grandmother and stepgrandfather in Texas, and they
have since continued to request custody of T.H.
Prior to the incident with I.N., T.H. had received a number of
services to address his mental health and behavioral needs. In August
2011, T.H. was removed from his home by the police and taken to
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St. Luke’s Hospital for aggressive behavior. In September 2011, he was
placed in the Four Oaks PMIC Program and resided in the facility for
seven months. In December 2012, T.H. was committed to the Cherokee
Mental Health Institute (MHI) after threatening to stab kids at school
with a paper knife, drawing pictures of shooting people and blowing up
houses, and stating that voices in his head were telling him to do bad
things. He remained at Cherokee MHI until February 2013, when he
received a placement at the Boys and Girls Home in Sioux City. Through
each of the out-of-home placements, T.H. was given services relating to
anger management, coping mechanisms, age-appropriate social skills,
communication skills, and self-esteem. T.H. was returned to his
parental home in August 2013 with a good prognosis.
Beginning in January 2014, the Sioux City police were frequently
called to assist with family disturbances in his home. T.H.’s mother
struggled to contain T.H.’s behavior and sought assistance from juvenile
officers and a therapist. In September 2014, after T.H. broke a window
in the family home, he was placed on an Informal Adjustment and
assigned twenty hours of community service. T.H.’s mother also pursued
outpatient mental health services and medication for T.H. School liaison
services were also added to support him at school. In June of 2015,
police were twice called to address incidents within his home after T.H.
punched his brother and mother and placed his mother in a choke hold
during an argument. Juvenile officers discussed the possibility of a
second Informal Adjustment, but opted to give T.H. one month to
demonstrate his ability to live in the home without aggression. Less than
a month later, T.H. was brought to detention for sexually abusing I.N.
After being placed in detention, T.H. completed two psychological
evaluations. T.H. was diagnosed with a schizoaffective disorder, bipolar
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type; an attention deficit/hyperactivity disorder, combined presentation;
an oppositional defiant disorder, moderate; and an unspecified anxiety
disorder. T.H. expressed a desire not to be returned to his parental
home, stating he was afraid he would hurt his mother, brother, or do
something sexual again.
Considering the above circumstances and T.H.’s history of prior
services, the court concluded that it was in T.H.’s best interests to be
placed in a residential treatment facility. The court ordered T.H. to be
placed in the S.T.O.P. program at the Four Oaks facility where he would
receive a number of services. The court also found that T.H.’s offense is
a tier III sexual offense, and therefore, T.H. was required to register as a
sex offender pursuant to Iowa Code section 692A.102(1)(c)(10). The court
explained it had no discretion to defer or waive the sex offender
registration requirements, as T.H. was fourteen years old and committed
his offense with force. Accordingly, the court ordered T.H. to register as
a sex offender pursuant to Iowa Code section 692A.103(4).
T.H. appealed and raised two issues. First, he asserted there was
insufficient evidence to find he committed sexual abuse by force.
Second, he argued the mandatory sex offender registration constituted
cruel and unusual punishment in violation of both the Iowa and
United States Constitutions. We transferred the case to the court of
appeals. It concluded there was substantial evidence to support a
finding that T.H. sexually abused I.N. by force. It also found that
mandatory sex offender registration for juveniles was not cruel and
unusual punishment.
We granted T.H.’s application for further review.
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II. Standard of Review.
Juvenile delinquency proceedings are “special proceedings that
provide an alternative to the criminal prosecution of children where the
best interest of the child is the objective.” In re M.L., 868 N.W.2d 456,
460 (Iowa Ct. App. 2015). We consider the sufficiency of the evidence in
juvenile delinquency adjudications de novo. In re D.S., 856 N.W.2d 348,
351 (Iowa 2014). We review constitutional challenges de novo. State v.
Roby, 897 N.W.2d 127, 137 (Iowa 2017).
III. Analysis.
A. Sufficiency of Evidence. A person commits sexual abuse in
the third degree when the person performs a sex act under various
circumstances, including when “[t]he act is done by force or against the
will of the other person.” Iowa Code § 709.4(1)(a). T.H. alleges the State
introduced insufficient evidence that he committed a sex act “by force or
against the will” of I.N.
The essence of the claim asserted by T.H. is built upon two
propositions. First, he used the nature of their relationship to support
the absence of any evidence of force. T.H. asserted he had been
pursuing a relationship with I.N., they maintained a friendly relationship,
they had spent time together alone in the past, I.N. never felt threatened
or fearful during any past encounter, and he was invited by I.N. into her
home to be alone with her at the time in question. Second, he claimed
the testimony of I.N. about the event was both implausible and
inconsistent, claiming the sex act that occurred was voluntary.
Upon our review of the transcript, we find substantial evidence to
support the crime, including the element of force. I.N. testified T.H.
forced her head into his erect penis, and she responded by repeatedly
telling him “no.” T.H. acknowledged to police that he forced I.N.’s head
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down into his penis and that he asked her why she did not want to
perform oral sex. Upon our de novo review, we also consider the findings
of the juvenile judge who heard the testimony and evaluated the
credibility of the witnesses. In re A.K., 825 N.W.2d 46, 49 (Iowa 2013).
B. Mandatory Juvenile Sex Offender Registration. T.H. next
argues that the mandatory sex offender registration requirement
constitutes cruel and unusual punishment because the governing
statute does not permit the juvenile court to waive the registration
requirement for juveniles like himself who were found delinquent of a sex
act under aggravated circumstances. He argues the constitutional
protections entitle all juveniles to an individualized assessment by the
juvenile court to determine if registration should be waived or imposed.
T.H. builds his argument on those cases requiring an individualized
hearing before sentencing juvenile offenders to imprisonment without
parole. See generally State v. Lyle, 854 N.W.2d 378 (Iowa 2014); State v.
Ragland, 836 N.W.2d 107 (Iowa 2013); State v. Pearson, 836 N.W.2d 88
(Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013).
To address this argument, we must first determine the operation of
the sex offender registry statute with respect to juvenile offenders. This
task requires us to consider two statutory schemes: the sex offender
registry statute and the statute governing the adjudication and
disposition of juvenile offenders. Second, we will review the requirements
of the sex offender registry statute as applied to T.H.
1. Mandatory registration for certain juveniles. The Iowa Sex
Offender Registry statute broadly governs the registration of sex
offenders in Iowa. Under the statute, any person “convicted” of an
offense designated as a tier I, II, or III crime is required to register with
the Iowa Sex Offender Registry. Iowa Code § 692A.103(1). Generally,
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this registration requirement applies to juvenile offenders. Juveniles
adjudicated delinquent of a qualifying offense are considered “convicted”
for registration purposes. Id. § 692A.101(7).
Notwithstanding, the registration statute permits the juvenile court
to “waive[] the registration” for juvenile offenders if it “finds that the
person should not be required to register.” Id. § 692A.103(3).
Additionally, if a juvenile court does not initially waive the registration
requirement, it may subsequently “modify or suspend the registration
requirements” upon a showing of good cause prior to the discharge of a
juvenile from the jurisdiction of the court. Id. § 692A.103(5).
Yet, the statute does not permit the juvenile court to waive the
registration requirements, or modify or suspend the requirements, for
juveniles fourteen years of age or older at the time of their sex offense
and who committed their offense “by force or the threat of serious
violence, by rendering the victim unconscious, or by involuntary
drugging of the victim.” Id. § 692A.103(4). If a juvenile commits a sex
offense under these circumstances, the juvenile must register as a sex
offender and may not petition the juvenile court to modify or suspend the
registration requirements prior to the discharge from the jurisdiction of
the court. Id. § 692A.103(5)(e). Accordingly, under the sex offender
registration statute, juveniles who are found delinquent of an aggravated
sex offense must register as sex offenders, and the requirement cannot
be waived under the statute by the juvenile court.
The provisions of the sex offender registration statute, however,
must be read in conjunction with the juvenile justice provisions of
chapter 232. In particular, the statute governing dispositional orders for
juvenile offenders directs the juvenile court to “determine whether [a]
child shall remain on the sex offender registry prior to termination of the
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dispositional order.” Id. § 232.54(1)(i). Importantly, unlike the
provisions governing the waiver of the registration requirement for
juveniles, the authority of the juvenile court to determine if a juvenile
should remain on the registry after the dispositional order terminates
does not exclude juveniles who commit sex crimes under aggravated
circumstances. Thus, an aggravated sex offender must initially register
under the statute. However, any time a court acts to terminate a child’s
dispositional order that “require[d] [the] child to register as a sex offender
pursuant to chapter 692A, the juvenile court shall determine whether the
child shall remain on the sex offender registry prior to the termination of
the dispositional order.” 1 Id.
This approach is not only consistent with the language of chapter
692A and chapter 232, but it is also in line with the objective of the
juvenile law. Retaining the juvenile court’s jurisdiction is consistent with
the research that shows juvenile sex offenders can achieve rehabilitation
far easier than adult sex offenders. See Robert E. Shepherd Jr.,
Advocating for the Juvenile Sex Offender, Part 1, 21 Crim. Just. 53, 54
(2006) (“Adolescent sex offenders are far less predatory, are less likely to
engage in serious or aggressive behaviors, are far more amenable to
successful treatment, are more readily treated and supervised within the
community, and have significantly lower recidivism rates.”); see also
Roper v. Simmons, 543 U.S. 551, 569–71, 125 S. Ct. 1183, 1195–96
(2005) (recognizing the “diminished culpability of juveniles” and their
1A dispositional order can automatically terminate by operation of law when a
juvenile reaches a certain age or it can terminate at the hand of the juvenile court prior
to its expiration. See Iowa Code § 232.53 (governing duration of dispositional orders).
The requirement for the juvenile court to determine if a child shall remain on the sex
offender registry only applies when the court terminates a dispositional order requiring
the child to register as a sex offender “prior to its expiration.” Id. § 232.54(1). Thus, if a
dispositional order expires by operation of law, the juvenile offender remains on the sex
offender registry.
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greater capacity for rehabilitation); Lyle, 854 N.W.2d at 400 (nothing a
juvenile’s “greater capacity for growth and reform”). Thus, the juvenile
court is able to relieve a juvenile sex offender from the registration
requirements when rehabilitation under a dispositional order is achieved
prior to expiration.
2. Sex offender registry requirements. Generally, when a juvenile
is required to register as a sex offender, the registration begins on the
date the juvenile delinquent is released from placement in a juvenile
facility; the date the juvenile delinquent begins attending a public or
private education institution as a student; or the date of conviction if
probation, incarceration, or placement in a juvenile facility was not
ordered as a disposition. See Iowa Code § 692A.103(1). Once
registration occurs, numerous restrictions and requirements are
imposed. Thus, we turn to consider the impact of the registration
requirements on T.H.
T.H. was fourteen years old at the time of his offense. In its
delinquency adjudication, the juvenile court specifically found that T.H.
committed the offense with force, as he used his hand to shove I.N.’s
head toward his penis. Therefore, the juvenile court indeed lacked
discretion to waive or defer his requirement to register as a sex offender,
and it may not subsequently act to modify or terminate his registration
requirement during the period of his dispositional order. For at least the
duration of his dispositional order, T.H. must abide by the following
terms of the sex offender registry.
T.H. must appear in person to register with the sheriff of each
county where he resides, works, or attends school. Id. § 692A.104(1). If
T.H. changes his residence, employment, or school he must notify the
county sheriff within five business days. Id. § 692A.104(2). If T.H.
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moves to, works in, or attends school in a new jurisdiction, he must
notify the sheriff in the county of his principal residence of his presence
in the new jurisdiction. Id. § 692A.104(5). If T.H. plans to leave the
county for more than five days, he must notify the sheriff of his
intentions and provide the location and period of time that he will be
staying out of the county. Id. § 692A.105. Every three months, T.H.
must appear in person to verify the location of his residence,
employment, and school. Id. § 692A.108(1)(c). He will also pay an
annual registration fee of twenty-five dollars. Id. § 692A.110(1).
Because T.H. committed an offense against a minor, he is subject
to a number of exclusion zones and employment restrictions. He may
not be present upon, nor loiter within 300 feet of, the property of an
elementary or secondary school, except for the school he attends. Id.
§ 692A.113(1)(a)–(b). He similarly may not be present upon, nor loiter
within 300 feet of, the property of a public library, absent prior written
permission by the library administrator. Id. § 692A.113(1)(f)–(g). T.H.
also may not be present upon, nor loiter within 300 feet of, the property
of a child care facility, absent prior written permission by the facility. Id.
§ 692A.113(1)(d)–(e). T.H. may not loiter on the premises of any facility
for dependent adults, nor may he be present at an event that provides
services or programming for dependent adults. Id. § 692A.115(1).
Finally, T.H. may not be present upon nor loiter within 300 feet of
any place intended primarily for the use of minors including
but not limited to a playground available to the public, a
children’s play area available to the public, a recreational or
sport-related activity area when in use by a minor, a
swimming or wading pool available to the public when in use
by a minor, or a beach available to the public when in use by
a minor.
Id. § 692A.113(1)(h).
 13
Throughout the duration of his registration, T.H. may not work or
volunteer for a “municipal, county, or state fair or carnival when a minor
is present on the premises.” Id. § 692A.113(3)(a). He also may not work
or volunteer at a “children’s arcade, an amusement center having coin or
token operated devices for entertainment, or facilities providing programs
or services intended primarily for minors, when a minor is present.” Id.
§ 692A.113(3)(b). T.H. similarly may not work or volunteer at a “public
or nonpublic elementary or secondary school, child care facility, or public
library.” Id. § 692A.113(3)(c). He is also prevented from working or
volunteering at “any place intended primarily for use by minors including
but not limited to a playground, a children’s play area, recreational or
sport-related activity area, a swimming or wading pool, or a beach.” Id.
§ 692A.113(3)(d). He may not work or volunteer for any business that
“operates a motor vehicle primarily marketing, from or near the motor
vehicle, the sale and dispensing of ice cream or other food products to
minors.” Id. § 692A.113(3)(e). As well, T.H. may not be employed by a
“facility providing services for dependent adults or at events where
dependent adults participate in programming.” Id. § 692A.115(1).
Because T.H. is a minor, he is not subject to any residency
restrictions. Id. § 692A.114(3)(e). However, if T.H. is still required to
register after becoming an adult, he will not be permitted to reside within
2000 feet of a school or child care facility. Id. § 692A.114(2). As well,
should the juvenile court see fit, T.H. may be supervised by an electronic
tracking and monitoring system. Id. § 692A.124(3).
T.H.’s registration information will be publicized on the sex
offender registry website, which is searchable by “name, county, city,
zip code, and geographic radius.” Id. § 692A.121(1). The website will
also publish T.H.’s full name, photographs, date of birth, home address,
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and physical description, including scars, marks, or tattoos. Id.
§ 692A.121(2)(b)(1)(a)–(e). The website provides the statutory citation and
text of his offense, as well as informs the public whether T.H. is subject
to residence restrictions, employment restrictions, and exclusion zones.
Id. § 692A.121(2)(b)(1)(f)–(h).
Members of the general public may also contact the county
sheriff’s office and request additional information about T.H. A member
of the public that contacts the sheriff and provides T.H.’s date of birth,
which is publicized on the sex offender registry website, may request a
list of schools T.H. has attended, the names and addresses of his current
and former employers, locations and dates of any temporary lodging, and
his vehicle information. Id. § 692A.121 (5)(a)–(b).
If T.H. violates any of the above requirements, he commits an
aggravated misdemeanor. Id. § 692A.111(1). Any subsequent violation is
a class “D” felony. Id. Additionally, if T.H. violates a registration
requirement, he must “register for an additional ten years, commencing
from the date [his] registration would have expired.” Id. § 692A.106(4).
T.H.’s registration term will be tolled until he resumes compliance with
the statutory requirements. Id. § 692A.107(2).
T.H. is required to register for at least the duration of his
dispositional order. Id. § 232.54(1)(i). If the juvenile court determines
that T.H. should remain on the registry beyond the duration of his
dispositional order, T.H. will register for a minimum of ten years from the
date of his initial registration. Id. § 692A.106(1). However, T.H. may
petition for modification after five years if he satisfies a number of
conditions. Id. § 692A.128(2). T.H. must complete all ordered sex
offender treatment programs, submit to a risk assessment and be
deemed a low risk to reoffend, not be incarcerated, and obtain a
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stipulation to the modification from the director of the judicial district
department of correctional services. Id. However, if T.H. is no longer
under the juvenile court or department of correctional services’
supervision at the time he requests modification, he need not produce
the stipulation. Id. 692A.128(6). Accordingly, if T.H. abides by all of the
registration requirements, completes all of the ordered treatment
programs, and progresses to the point that he may be deemed a low risk
to reoffend, he may be released from the obligation to register as a sex
offender after five years.
C. Cruel and Unusual Punishment. T.H. alleges that mandatory
sex offender registration, as applied to juveniles, is grossly
disproportionate and, therefore, constitutes cruel and unusual
punishment in violation of the Iowa and United States Constitutions.
See U.S. Const. amend. VIII; Iowa Const. art. I, § 17. While we have
previously heard similar challenges to the Iowa Sex Offender Registry
scheme, we have not considered the issue in the context of juveniles, nor
have we meaningfully considered a cruel and unusual punishment
challenge in light of the significant legislative overhaul of the statutory
scheme in 2009. Thus, while our prior sex offender cases are relevant
considerations, they are not dispositive.
1. Sex offender registry as punishment. Before we can assess
whether mandatory sex offender registration for certain juveniles is cruel
and unusual, we must first determine that registration is, in fact,
punishment. See State v. Crooks, 911 N.W.2d 153, 165 (Iowa 2018)
(disposing of a constitutional challenge to Iowa’s waiver provision for
youthful offenders by concluding the statute was not punitive); see also
Doe v. Miller, 405 F.3d 700, 723 n.6 (8th Cir. 2005) (“In view of our
conclusion that the statute is not punitive, it follows that the law is not a
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‘cruel and unusual punishment’ in violation of the Eighth Amendment.”);
Rainer v. State, 690 S.E.2d 827, 828 (Ga. 2010) (finding sex offender
registration did not constitute cruel and unusual punishment because
registration is regulatory, rather than punitive, in nature).
To determine whether mandatory sex offender registration for
certain juveniles is punishment, we find cases considering the issue in
the context of ex post facto challenges instructive. In State v. Seering, we
considered whether the 2000-foot residency restriction for certain
offenders was sufficiently punitive to violate the ex post facto prohibition.
701 N.W.2d 655, 667 (Iowa 2005). To ascertain whether the provision
was sufficiently punitive, we first considered whether the legislature
intended the statute to be punitive, rather than civil, in nature. Id.
Then, “[i]f the law was intended to be civil and nonpunitive, then we look
to see if it is nevertheless ‘so punitive either in purpose or effect as to
negate’ the nonpunitive intent.” Id. (quoting Smith v. Doe, 538 U.S. 84,
92, 123 S. Ct. 1140, 1147 (2003)).
Accordingly, we first consider whether, in mandating registration
for juveniles over the age of fourteen who commit their crimes “by force
or the threat of serious violence, by rendering the victim unconscious, or
by involuntary drugging of the victim,” the legislature intended to impose
criminal punishment. Iowa Code § 692A.103(4). We have previously
determined the legislative intent behind enacting chapter 692A was “to
protect the health and safety of individuals, especially children, not to
impose punishment.” Seering, 701 N.W.2d at 667; see also In re S.M.M.,
558 N.W.2d 405, 408 (Iowa 1997) (“The purpose of chapter 692A is clear:
to require registration of sex offenders and thereby protect society from
those who because of probation, parole, or other release are given access
to members of the public.”).
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Prior to 2009, the statute granted juvenile courts discretion with
respect to all juveniles adjudicated delinquent of a qualifying offense.
See Iowa Code § 692A.2(6) (2007) (“A person who is convicted . . . of [a
qualifying offense] as a result of adjudication of delinquency in juvenile
court shall be required to register as required in this chapter unless the
juvenile court finds that the person should not be required to register
under this chapter.”). In 2009, the legislature amended chapter 692A
and revoked that discretion with respect to juveniles like T.H., who were
at least fourteen years old at the time of their offense and who committed
their offense through certain aggravated means. 2009 Iowa Acts ch. 119,
§ 3 (codified at Iowa Code § 692A.103 (Supp. 2009)).
The legislature amended the chapter in an effort to more closely
comply with the Federal Sex Offender Registration and Notification Act
(SORNA), Title I of the Adam Walsh Child Protection and Safety Act of
2006. Maxwell v. Iowa Dep’t of Pub. Safety, 903 N.W.2d 179, 185 n.4
(Iowa 2017); see generally 2009 Iowa Acts ch. 119 (amending Iowa Code
ch. 692A). SORNA requires juveniles to abide by the registry
requirements, including possible lifetime registration, if the juvenile was
“14 years of age or older at the time of the offense and the offense
adjudicated was comparable to or more severe than aggravated sexual
abuse.” 34 U.S.C. § 20911(8) (Westlaw through Pub. L. No. 115-173).
But see id. § 20927(b)(1) (providing a state may avoid a noncompliance
penalty if implementing certain SORNA provisions “would place the
jurisdiction in violation of its constitution, as determined by a ruling of
the jurisdiction’s highest court”). SORNA was promulgated “[i]n order to
protect the public from sex offenders and offenders against children.” Id.
§ 20901. Thus, although the provisions have been amended since our
18
decisions in Seering and S.M.M., we believe the legislative intent behind
our current sex offender statute remains protective and nonpunitive.
Nevertheless, we also consider whether the effects and impact of
chapter 692A on juveniles is sufficiently punitive to render the scheme
penal in nature. In this inquiry, we are guided by the Mendoza-Martinez
factors, which consider whether (1) “the sanction involves an affirmative
disability or restraint,” (2) “it has historically been regarded as a
punishment,” (3) “it comes into play only on a finding of scienter,” (4) “its
operation will promote the traditional aims of punishment—retribution
and deterrence,” (5) “the behavior to which it applies is already a crime,”
(6) “an alternative purpose to which it may rationally be connected is
assignable for it,” and (7) “it appears excessive in relation to the
alternative purpose assigned.” Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69, 83 S. Ct. 554, 567–68 (1963).
a. Affirmative disability or restraint. Chapter 692A, as applied to
juveniles, plainly imposes an affirmative disability or restraint. As
discussed, juvenile registrants are hindered in meaningfully reintegrating
into their communities upon release from treatment facilities or out-of-
home placements. While juvenile registrants may continue to attend
public school and are not subject to the 2000-foot limitation, they
nevertheless may not be present upon, nor loiter within 300 feet of, “any
place intended primarily for the use of minors.” Iowa Code
§ 692A.113(1)(h) (2016).
This restriction could prevent juveniles from participating in
prosocial after-school activities, sports teams, and youth clubs that are
available to their peers, which in turn severely limits their opportunities
to develop communication and social skills with children their own age.
Further, juveniles may not visit or loiter near public libraries, other
19
elementary or secondary schools, and child care facilities. Id.
§ 692A.113(1)(a)–(g). Juveniles who hope to obtain after-school or part-
time employment are similarly limited in their options. See id.
§§ 692A.113(3)(a)–(e), .115. Thus, the statute in many respects isolates
juvenile registrants from their peers outside of school hours.
Beyond actual exclusion zones, juvenile registrants must appear,
in person, to register with the sheriff of the county in which they reside,
attend school, or work. Id. § 692A.104(1). Juveniles like T.H. who were
adjudicated of a tier III offense must appear in person every three months
to verify their residence, employment, and school. Id. § 692A.108(1)(c);
cf. Smith, 538 U.S. at 101–02, 123 S. Ct. at 1151–52 (finding Alaska’s sex
offender statute did not require in-person updates and, therefore, did not
impose an affirmative restraint). In fact, the statutory scheme, which
requires in-person check-ins, employment conditions, and the possibility
of electronic monitoring, is strikingly similar to supervised probation.
Despite the protective purpose of the registry’s requirements, the totality
of the obligations under the statute impose an affirmative restraint on
juvenile registrants. This factor therefore weighs in favor of finding the
statute punitive.
b. Historically regarded as punishment. We next consider whether
compliance with the sex offender registry, for juveniles, entails conduct
that is historically regarded as punitive. In Seering, we considered
whether the 2000-foot rule was sufficiently akin to banishment. 701
N.W.2d at 667. We found the rule “only restricts sex offenders from
residing in a particular area. Offenders are not banished from
communities and are free to engage in most community activities. The
statute is far removed from the traditional concept of banishment.” Id. at
667–68.
 20
In Smith, the Supreme Court considered an ex post facto challenge
to Alaska’s sex offender scheme. The Court rejected the comparison of
Alaska’s statutory requirements to banishment and public shaming.
Smith, 538 U.S. at 98, 123 S. Ct. at 1150. The Court noted that colonial-
era practices that required offenders to “stand in public with signs
cataloguing their offense,” branded murders with an “M” or thieves with
a “T,” and outright banished offenders from their original community, all
involved “stag[ing] direct confrontation between the offender and the
public.” Id. at 97–98, 123 S. Ct. at 1150 (quoting Adam J. Hirsch, From
Pillory to Penitentiary: The Rise of Criminal Incarceration in Early
Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982) (first quote)). Indeed,
punishments “such as public shaming, humiliation, and banishment,
involved more than the dissemination of information. They either held
the person up before his fellow citizens for face-to-face shaming or
expelled him from the community.” Id. The stigma resulting from
Alaska’s sex offender laws, however,
results not from public display for ridicule and shaming but
from the dissemination of accurate information about a
criminal record, most of which is already public. Our system
does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as
punishment. On the contrary, our criminal law tradition
insists on public indictment, public trial, and public
imposition of sentence. Transparency is essential to
maintaining public respect for the criminal justice system,
ensuring its integrity, and protecting the rights of the
accused. The publicity may cause adverse consequences for
the convicted defendant, running from mild personal
embarrassment to social ostracism. In contrast to the
colonial shaming punishments, however, the State does not
make the publicity and the resulting stigma an integral part
of the objective of the regulatory scheme.
Id. at 98–99, 123 S. Ct. at 1150.
21
While the dissemination of accurate information about a criminal
record is not historically punitive for adults, juveniles are traditionally
shielded from such publication. Under the juvenile court’s jurisdiction,
juveniles surrender certain procedural safeguards afforded to adults—
namely a trial by jury—in exchange for the benefits of a confidential,
rehabilitative system. Juvenile courts were built on the “idea [that] crime
and punishment [were] to be abandoned. The child was to be ‘treated’
and ‘rehabilitated’ and the procedures, from apprehension through
institutionalization, were to be ‘clinical’ rather than punitive.” In re
Gault, 387 U.S. 1, 15–16, 87 S. Ct. 1428, 1437 (1967). By sealing
records, juvenile courts prevent youths from enduring lasting stigma for
adolescent blunders.
In Iowa, juvenile courts generally exercise “exclusive original
jurisdiction in proceedings concerning a child who is alleged to have
committed a delinquent act unless otherwise provided by law.” Iowa
Code § 232.8(1)(a). Unless a juvenile committed “a delinquent act that
would be a forcible felony if committed by an adult,” juvenile court
records are, by default, “confidential and are not public records.” Id.
§ 232.147(2) (2017). Indeed, even if a juvenile is alleged to have
committed an act that would be a forcible felony if committed by an
adult, juvenile courts may still order that the juvenile’s court records be
kept confidential if “the child’s interest in making the records confidential
outweighs the public’s interest in the records remaining public records.”
Id. § 232.149A(1)(b).
However, under a limited set of circumstances, juveniles may be
prosecuted as adults and thus lose the confidentiality benefits of the
juvenile system. The juvenile court must find that (1) the child is at least
fourteen years old, (2) there is probable cause the child committed a
22
delinquent act, and (3) “there are not reasonable prospects for
rehabilitating the child if the juvenile court retains jurisdiction . . . and
that waiver . . . would be in the best interests of the child and the
community. Id. § 232.45(6)(a)–(c) (2016). Thus, under our dual system,
children are only removed from juvenile court jurisdiction and treated as
adults when they are deemed to be deserving of punishment, rather than
rehabilitative services.
In United States v. Juvenile Male, the United States Court of
Appeals for the Ninth Circuit similarly acknowledged this distinction
between juvenile confidentiality and adult publication. 590 F.3d 924,
937 (9th Cir. 2009), vacated on other grounds by 564 U.S 932, 937–39,
131 S. Ct. 2860, 2864–65 (2011). Whereas Smith noted that much of the
disseminated information was already made public by virtue of the
intentionally public criminal trial, the Ninth Circuit emphasized that
“public availability of information is not, however, a traditional part of the
rehabilitative juvenile justice system.” Id. Indeed, the court found
“[h]istorically, information from juvenile adjudications has been made
public only when a juvenile’s case is transferred to adult criminal court
for punitive purposes.” Id. Because the decision to transfer a juvenile’s
case to adult court is “based in part on a prediction that rehabilitation is
improbable,” and that “juvenile’s case merits punishment, rather than
rehabilitation,” publicizing a juvenile offender’s identity and offense “is
historically a central feature of a punitive rather than a rehabilitative
system of justice.” Id.
Other courts have concluded the registry’s requirements are
historically punitive. In In re Nick H., the Maryland Court of Special
Appeals found “requiring [the juvenile] to register has essentially the
same effect on his life as placing him on probation. It is well-settled in
23
this State that probation is a form of a criminal sanction.” 123 A.3d 229,
244 (Md. Ct. Spec. App. 2015) (quoting Doe v. Dep’t of Public Safety &
Corr. Servs., 62 A.2d 123, 139 (Md. 2013) (plurality opinion)). Further,
the court noted the “purpose of keeping [juvenile] records confidential is
to further the rehabilitation of young offenders by relieving them of the
enduring stigma of their misconduct.” Id. (alteration in original) (quoting
District of Columbia v. Cooper, 483 A.3d 317, 323 (D.C. 1984)); cf. In re
C.P., 967 N.E.2d 729, 735, 749 (Ohio 2012) (noting the sex offender
registry “changes the very nature of [a serious youth offender]
disposition, imposing an adult penalty immediately upon the
adjudication” and ultimately concluding the juvenile registration regime
is unconstitutional).
Beyond the mere availability of a juvenile’s records, the sex
offender statute orders the mass publication of an offender’s information
to the state sex offender website. The Supreme Court considered this
feature in Smith, but remained unmoved.
The fact that Alaska posts the information on the
Internet does not alter our conclusion. It must be
acknowledged that notice of a criminal conviction subjects
the offender to public shame, the humiliation increasing in
proportion to the extent of the publicity. And the geographic
reach of the Internet is greater than anything which could
have been designed in colonial times. These facts do not
render Internet notification punitive. The purpose and the
principal effect of notification are to inform the public for its
own safety, not to humiliate the offender. Widespread public
access is necessary for the efficacy of the scheme, and the
attendant humiliation is but a collateral consequence of a
valid regulation.
The State’s Web site does not provide the public with
means to shame the offender by, say, posting comments
underneath his record. An individual seeking the
information must take the initial step of going to the
Department of Public Safety’s Web site, proceed to the sex
offender registry, and then look up the desired information.
The process is more analogous to a visit to an official archive
of criminal records than it is to a scheme forcing an offender to
24
appear in public with some visible badge of past criminality.
The Internet makes the document search more efficient, cost
effective, and convenient for Alaska’s citizenry.
538 U.S. at 99, 123 S. Ct. at 1150–51 (emphasis added).
However, the Smith reasoning is less persuasive in 2018 than it
was in 2003. In Commonwealth v. Perez, Judge Donohue of the
Pennsylvania Superior Court offered a thoughtful concurrence on the
viability of Smith’s reasoning in the modern, interconnected world.
The environment has changed significantly with the
advancements in technology since the Supreme Court’s 2003
decision in Smith. As of the most recent report by the United
States Census Bureau, approximately 75 percent of
households in the United States have internet access.
Yesterday’s face-to-face shaming punishment can now be
accomplished online, and an individual’s presence in
cyberspace is omnipresent. The public internet website
utilized by the Pennsylvania State Police broadcasts
worldwide, for an extended period of time, the personal
identification information of individuals who have served
their “sentences.” This exposes registrants to ostracism and
harassment without any mechanism to prove
rehabilitation—even through the clearest proof. In my
opinion, the extended registration period and the worldwide
dissemination of registrants’ information authorized by
SORNA now outweighs the public safety interest of the
government so as to disallow a finding that it is merely
regulatory.
97 A.3d 747, 765–66 (Pa. Super. Ct. 2014) (Donohue, J., concurring)
(footnote omitted). Similarly, the court in Nick H found “[p]ublishing
information about former juvenile sex offenders on a public website
hardly provides confidentiality, and instead creates the ‘enduring stigma
of their misconduct.’ ” 123 A.3d at 244 (quoting Cooper, 483 A.3d at
323).
We find that mass publication of a juvenile’s delinquency
adjudication weighs in favor of finding the statute punitive. Juveniles
are traditionally shielded from having their records publicized unless
they are deemed to be in need of punishment and beyond rehabilitation.
25
While a passive website is indeed different from colonial-era public
shaming designed to create face-to-face encounters with the public, we
disagree with the Smith Court’s characterization of the website being akin
to an archive of criminal records. Posting juveniles’ personal
information, including their full name, date of birth, annual
photographs, home address, and physical description—including scars,
marks, and tattoos—goes well beyond merely unsealing previously
confidential records. The juvenile is publically branded as deviant on a
website known to and accessible by the juvenile’s peers. While T.H.’s
period of registration may be less than an adult’s, a member of the public
need only take a screen shot of the website to preserve T.H.’s presence
forever—a possibility that is antithetical to the traditional treatment of
juveniles within our justice system.
c. Scienter requirement. The third factor, whether the regulations
are triggered upon a finding of scienter, was deemed to be “of little
weight” to the Supreme Court’s decision in Smith. 538 U.S. at 105, 123
S. Ct. at 1154. Indeed, we did not identify this factor as a relevant
consideration in Seering, 701 N.W.2d at 667.
Other courts, however, have considered this factor in the context of
sex offender registries. In Nick H., the Maryland statute instructed that
juveniles must register only if the court determined they posed a
significant risk of reoffending. 123 A.3d at 244–45. The court found a
“determination that the juvenile sex offender is at significant risk of re-
offending logically implies that the juvenile court must find a significant
risk of future criminal intent on the part of the juvenile offender.” Id. at
244. The statute imposed no such prerequisite finding on adult
offenders. Id. Accordingly, the court found the scienter factor to weigh
in favor of the statute being punitive. Id. at 245.
 26
Under Iowa’s scheme, some juveniles are required to register
pursuant to the court’s discretion, and such a determination may require
weighing the juvenile’s intent to recommit. With respect to juveniles at
issue in this case, however, there is no finding of scienter that triggers
registration. Juveniles like T.H. must register, regardless of their risk of
reoffending. Thus, the lack of a scienter requirement weighs in favor,
albeit marginally, of finding the statute nonpunitive. See State v. Eighth
Judicial Dist. Ct. (Logan D.), 306 P.3d 369, 387–88 (Nev. 2013) (finding
juvenile registration was not premised on a scienter requirement and
agreeing with the Supreme Court that the factor is “of little weight” to the
analysis).
d. Promote traditional aims of punishment—retribution and
deterrence. In Smith, the Court found “any number of governmental
programs might deter crime without imposing punishment. Smith, 538
U.S. at 102, 123 S. Ct. at 1152. Indeed, “[t]o hold that the mere
presence of a deterrent purpose renders such sanctions ‘criminal’ . . .
would severely undermine the Government’s ability to engage in effective
regulation.” Id. (second alteration in original) (quoting Hudson v. United
States, 522 U.S. 93, 105, 118 S. Ct. 488, 496 (1997)). Further, the
Supreme Court found that Alaska’s decision to impose greater reporting
requirements on repeat and aggravated offenders was not retributive, but
rather “reasonably related to the danger of recidivism.” Id.
Justice Souter concurred in the Smith decision, but expressed
doubt that registration requirements purely served a protective purpose.
The fact that the Act uses past crime as the touchstone,
probably sweeping in a significant number of people who
pose no real threat to the community, serves to feed
suspicion that something more than regulation of safety is
going on; when a legislature uses prior convictions to impose
burdens that outpace the law’s stated civil aims, there is
27
room for serious argument that the ulterior purpose is to
revisit past crimes, not prevent future ones.
Id. at 109, 123 S. Ct. at 1155–56 (Souter, J., concurring in judgment).
He further suspected that retribution was in fact a goal of the Alaska
legislature, and other legislatures, when enacting sex offender statutes.
Widespread dissemination of offenders’ names, photographs,
addresses, and criminal history serves not only to inform the
public but also to humiliate and ostracize the convicts. It
thus bears some resemblance to shaming punishments that
were used earlier in our history to disable offenders from
living normally in the community. While the Court accepts
the State’s explanation that the Act simply makes public
information available in a new way, the scheme does much
more. Its point, after all, is to send a message that probably
would not otherwise be heard, by selecting some conviction
information out of its corpus of penal records and
broadcasting it with a warning. Selection makes a
statement, one that affects common reputation and
sometimes carries harsher consequences, such as exclusion
from jobs or housing, harassment, and physical harm.
Id. (citations omitted).
In Seering, we explained, “The nature of some governmental
restrictions, especially those designed to protect the health and safety of
children, may necessarily have some effects related to the goals of
punishment.” 701 N.W.2d at 668. We concluded any deterrent or
retributive effects of the 2000-foot rule were “secondary and largely
‘consistent with the regulatory objective.’ ” Id. (quoting Smith, 538 U.S.
at 102, 123 S. Ct. at 1152 (majority opinion)).
In Logan D., the Nevada Supreme Court considered whether
juvenile registration promoted retribution by assigning more stringent
registration requirements based on the offense committed, rather than
the juvenile’s individual risk to reoffend. 306 P.3d at 385. According to
the juvenile, if heightened registration requirements were intended to
guard against recidivism, they would be associated with individualized
28
risk-assessments, rather than the prior offense. Id. The Nevada
Supreme Court rejected this characterization. Id. Like the Supreme
Court in Smith, the court found the “scheme of offense-based tiering is
consistent with the statute’s goal of protecting the public from recidivist
juveniles [and] it is reasonable to conclude that juvenile offenders who
have committed the most severe offenses pose the greatest risk to the
public.” Id. (footnote omitted).
We find this factor weighs in favor of finding the statute
nonpunitive. While the registry certainly produces deterrent and
retributive effects, requiring juvenile offenders to abide by exclusion
zones and employment restrictions directly promotes the civil objective of
alerting the public to the presence of a sexual offender. Although the
severity of the requirements may incidentally deter individuals from
committing an initial offense, that fact does not detract from the primary
purpose and effect of the statute, which is reducing the opportunities for
juveniles who have committed aggravated sexual offenses to reoffend.
e. Applies to behavior that is already criminal. Like the scienter
factor, the Smith Court did not find this factor to be useful in its analysis,
and we similarly did not consider it in Seering. See Smith 538 U.S. at
105, 123 S. Ct. at 1154; Seering, 701 N.W.2d at 667. The Court in Smith
conceded that the “regulatory scheme applies only to past conduct,
which was, and is, a crime,” but nevertheless reasoned that “[t]his is a
necessary beginning point, for recidivism is the statutory concern.” 538
U.S. at 105, 123 S. Ct. at 1154.
In Young v. State, the Maryland Court of Appeals was similarly
unpersuaded by the use of a criminal conviction to trigger the registry’s
requirements. 806 A.2d 233, 249 (Md. 2002).
29
There are many occasions when legislatures attach both
criminal and civil sanctions to the same act or omission.
The fact that the statute is triggered by a criminal conviction
does not undermine the Legislature’s intent to create a sex
offender registry to aid in the civil purpose of tracking the
location of known sex offenders. The same is true as to
restitution. Thus, although the connection between sex
offender registration and past criminal behavior is clear, we
accord only limited weight to this factor in light of the
equally strong connection between registration and
legitimate civil purposes.
Id.
The Iowa sex offender registry statute hinges upon a criminal
conviction, and thus applies to conduct that is already a crime.
However, we find Smith reasoning persuasive. When reducing recidivism
is the nonpunitive goal, using a conviction of a sexual offense is a
natural and nonsuspect means of achieving that goal. Thus, while this
factor weighs in favor of finding the scheme punitive, it does so only
slightly.
f. Rationally related to a nonpunitive purpose. We next consider
whether mandatory sex offender registration for certain juveniles has a
rational relationship to a civil purpose. In Seering, we found that, while
the 2000-foot rule “has some punitive impact . . . this factor underscores
that a statute is not punitive merely ‘because it lacks a close or perfect fit
with the nonpunitive aims it seeks to advance.’ ” 701 N.W.2d at 668
(quoting Smith, 538 U.S. at 103, 123 S. Ct. at 1152). Mandatory
registration for juveniles who have committed aggravated sexual offenses
clearly has a rational connection to the nonpunitive goal of protecting the
community, especially children, from subsequent sexual offenses.
Accordingly, this factor weighs in favor of finding the statute
nonpunitive.
30
g. Excessive in relation to the nonpunitive purpose. The final
Mendoza-Martinez factor is the most significant of the seven, as it
considers whether the legislature’s chosen means to carry out its
legitimate interests are so excessive as to cross the line from a civil
regulation to a criminal punishment. See Wallace v. State, 905 N.E.2d
371, 383 (Ind. 2009) (placing the greatest weight on this factor); Kellar v.
Fayetteville Police Dep’t, 5 S.W.3d 402, 409 (Ark. 1999) (same).
Importantly, the excessive inquiry “is not an exercise in determining
whether the legislature has made the best choice possible to address the
problem it seeks to remedy. The question is whether the regulatory
means chosen are reasonable in light of the nonpunitive objective.”
Smith, 538 U.S. at 105, 123 S. Ct. at 1154.
In Smith, the Supreme Court placed significant weight on the risk
of recidivism. The Court explained “the [Alaska] legislature’s findings are
consistent with grave concerns over the high rate of recidivism among
convicted sex offenders and their dangerousness as a class. The risk of
recidivism posed by sex offenders is ‘frightening and high.’ ” Id. at 103,
123 S. Ct. at 1153 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct.
2017, 2025 (2002)). Indeed, “[w]hen convicted sex offenders reenter
society, they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault.” McKune, 536 U.S. at 33,
122 S. Ct. at 2024) (citing Bureau of Justice Statistics, U.S. Dept. of
Justice, Sex Offenses and Offenders 27 (1997); Bureau of Justice
Statistics, U.S. Dept. of Justice, Recidivism of Prisoners Released in 1983
6 (1997)); accord Smith, 538 U.S. at 103, 123 S. Ct. at 1153. In light of
this serious risk, the Smith Court reasoned “the State can dispense with
individual predictions of future dangerousness and allow the public to
assess the risk on the basis of accurate, nonprivate information about
31
the registrants’ convictions without violating the prohibitions of the
Ex Post Facto Clause.” 538 U.S. at 104, 123 S. Ct. at 1153.
Yet, research published since the Smith decision in 2003
demonstrates that juvenile sex offenders exhibit drastically lower
recidivism rates than their adult counterparts. The Iowa Sex Offender
Research Council issued a report in 2013 that outlined the modern
research. Div. of Criminal & Juvenile Justice Planning, Iowa Dep’t of
Human Rights, Iowa Sex Offender Research Council Report to the Iowa
General Assembly 12 (2013), https://humanrights.Iowa.gov/
sites/default/files/media/SORC_1-15-13_Final_Report_%5B1%5D.pdf,
[https://web.archive.org/web/20170323233135/https://humanrights.
iowa.gov/sites/default/files/media/SORC_1-15-13_Final_Report[1].pdf].
The Council explained “studies have found extremely low rates of sexual
reoffending for juveniles and that sexual reoffending rates are much
lower than non-sexual re-offenses even among high-risk juveniles
committed to correctional facilities.” Id. (citations omitted). Juvenile
recidivism “for general delinquent behavior ranged from 8% to 58%, while
recidivism for sex offenders fell at 5% to 14%.” Id.
With respect to the effectiveness of sex offender registration,
multiple studies “have shown no significant difference in re-offense rates
between registered and non-registered juveniles.” Id. (emphasis added).
Moreover, juvenile
registration laws influence adjudication and charging
practices. Fewer juveniles are adjudicated for mandatory
registration offenses after laws requiring registration have
gone into effect. As new policies apply harsher
consequences for juvenile offenses, prosecutors become less
likely to move forward on sexual assault charges.
Additionally, after registry policy changes, the proportion of
sex offense charges that were reduced to less severe charges
increased significantly.
32
Id. Thus, juvenile recidivism is largely unaffected by the exclusion zones
and employment restrictions of the sex offender statute. What is most
affected by mandatory juvenile registration, then, is not the likelihood of
reoffending, but rather the likelihood that a juvenile will be charged with
or adjudicated delinquent of a sexual offense at all.
Furthermore, the “criminal sexual behaviors of adult sex offenders
appear to be more ‘the result of deeply ingrained and long-standing
pathology.’ ” Phoebe Geer, Justice Served? The High Cost of Juvenile Sex
Offender Registration, 27 Dev. Mental Health L. 34, 42 (2008) (quoting
Ayn Embar-Seddon & Allan D. Pass, Assessing, Managing, and Treating
Juvenile Sexual Offenders, 2004 J. Inst. Just. Int’l Stud. 112, 114
(2004)). Juvenile offenses, conversely, “appear to be more exploratory in
nature than those committed by adults and to not signify permanent
sexual deviance.” Id. “[S]tudies suggest that many of those who commit
sexual offenses as juveniles do so as a result of impulsivity and sexual
curiosity, which diminish with rehabilitation and general maturation.” In
re J.B., 107 A.3d 1, 17, 20 (Pa. 2014) (finding SORNA’s lifetime
registration provision unconstitutional as applied to juveniles).
Smith’s premise that the “frightening and high” rates of recidivism
justify the harsh impositions of the sex offender regime has proven
untrue in the context of juveniles. Indeed, the primary justification for
the sex offender registry—protecting the public from individuals
especially prone to reoffending—is substantially diminished with respect
to juvenile offenders. See Wallace, 905 N.E.2d at 383 (“[R]egistration
systems are a legitimate way to protect the public from sex offenders. Of
course if the registration and disclosure are not tied to a finding that the
safety of the public is threatened, there is an implication that the Act is
excessive.”).
33
Ultimately, automatically registering certain juveniles, and thus
publically branding them as aberrant and widely disseminating their
personal information, “makes more burdensome the punishment for a
crime after its commission.” State v. Myers, 923 P.2d 1024, 1043 (Kan.
1996). Subjecting some juveniles to mandatory registration, without any
prerequisite determination of the likelihood of reoffending, triggers
“consequences to sex offenders that go beyond the state’s interest in
public safety.” Doe v. State, 189 P.3d 999, 1018 (Alaska 2008). In light
of the totality of the statute’s impositions, coupled with the mass
publication of the juvenile’s personal information, we find that
mandatory registration for juveniles is excessive in light of its
nonpunitive purpose.
h. Balancing. Considering all of the Mendoza-Martinez factors, we
conclude that mandatory sex offender registration for juvenile offenders
is sufficiently punitive to amount to imposing criminal punishment. The
statute imposes an affirmative restraint akin to supervised probation. It
mandates the mass dissemination of offender records that are
historically kept confidential to promote the juvenile’s potential for
rehabilitation. And the sheer number of restrictions imposed on
juveniles, given the demonstrated low juvenile recidivism rate, is
excessive in light of the civil purpose of preventing multiple offenses.
2. Cruel and unusual. Upon finding that mandatory sex offender
registration for juveniles is sufficiently punitive to warrant imposing
constitutional safeguards, we next consider whether the practice goes so
far as to violate the constitutional prohibition against cruel and unusual
punishment. Importantly, that a civil regulatory regime is so excessive
as to render it effectively punitive does not, in turn, suggest that it is so
34
egregious and nefarious that the punishment is impermissibly cruel and
unusual.
T.H.’s cruel and unusual argument rests solely on his contention
that the sex offender registry regime treats juveniles like him akin to
adults, despite the “diminished culpability of juveniles.” Roper, 543 U.S.
at 571, 125 S. Ct. at 1196; see also Lyle, 854 N.W.2d at 398. He
contends that, in the absence of any consideration of the mitigating
factors outlined in Miller, mandatory registration for juveniles is grossly
disproportionate and therefore violative of the Iowa and United States
Constitutions. See Miller v. Alabama, 567 U.S. 460, 477–78, 132 S. Ct.
2455, 2468 (2012); State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).
On our review of Chapters 232 and 692A above, we found that
juveniles like T.H. are not in fact treated identically to adult offenders.
Chapter 692A indeed strips juvenile courts of the discretion to suspend
the initial registration requirement for certain aggravated juvenile
offenders. Chapter 232, however, retains the juvenile court’s authority to
determine, at the time the dispositional order is terminated, whether it is
in society’s and the juvenile’s best interests to continue the juvenile’s sex
offender registration. Accordingly, so long as a juvenile petitions to
terminate his or her dispositional order prior to its expiration, the
juvenile court retains authority to determine whether the child shall
remain on the registry and abide by regime’s requirements akin to an
adult.
We find this cooperative regime strikes a reasonable balance
between protecting society from the risk of aggravated offenders
committing subsequent offenses and accounting for the youthful
circumstances of juvenile offenders. The legislature has opted to place
aggravated juvenile offenders on the sex offender registry throughout the
35
duration of their dispositional order, which is directly tied to the
juvenile’s period of rehabilitation. We find it is not excessively severe for
the legislature to put additional constraints in place during the period
when a juvenile adjudicated delinquent of an aggravated sexual offense is
receiving reformative services, but has not yet been deemed rehabilitated.
Because we find the statute’s imposed punishment is not grossly
disproportionate, “no further analysis is necessary.” Seering, 701
N.W.2d at 670 (quoting State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa
2000)).
IV. Conclusion.
For the foregoing reasons, we affirm the decision of the court of
appeals.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
Appel, J., concurs in part and dissents in part, joined by Wiggins
and Hecht, JJ. Mansfield, J., files a separate concurrence in part and
dissent in part, joined by Waterman and Zager, JJ.
36
#16–0158, In re T.H.
APPEL, Justice (concurring in part and dissenting in part).
The majority reasons automatic, mandatory registration for
juvenile sex offenders is in fact punishment but holds that such
registration does not amount to cruel and unusual punishment under
article I, section 17 of the Iowa Constitution. I agree the registration is
punishment, however, I respectfully dissent from the majority’s holding
that the registration is not cruel and unusual.
I. Preliminary Concepts Regarding the Cruel and Unusual
Punishment Clause.
A. Relevant Constitutional and Statutory Provisions.
1. Constitutional provisions. The Eighth Amendment to the United
States Constitution provides, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. Similarly, article I, section 17 of the Iowa
Constitution provides, “Excessive bail shall not be required; excessive
fines shall not be imposed, and cruel and unusual punishment shall not
be inflicted.” Iowa Const. art. I, § 17.
T.H. does not suggest an analytical framework under the Iowa
Constitution different from that under the United States Constitution.
See In re Det. of Matlock, 860 N.W.2d 898, 903 (Iowa 2015). Even so, we
can independently apply the established federal framework, even if the
United States Constitution and the Iowa Constitution contain similar or
identical language. See Racing Ass’n of Cent. Iowa v. Fitzgerald,
675 N.W.2d 1, 6 (Iowa 2004).
2. Statutory provisions. This case involves a number of statutory
provisions that are relevant to T.H.’s constitutional challenge to
automatic, mandatory sex offender registration. I delineate three
37
statutory provisions to provide context but bring attention to other
relevant statutory provisions throughout this concurrence in part and
dissent in part.
The juvenile court adjudicated T.H. delinquent for performing a sex
act by force in violation of Iowa Code section 709.4(1)(a). See Iowa Code
§ 709.4(1)(a) (2016) (“A person commits sexual abuse in the third degree
when the person performs a sex act . . . by force or against the will of the
other person . . . .”).
Section 692A.102(1)(c)(10) classifies a conviction for “[s]exual
abuse in the third degree in violation of section 709.4, subsection 1,
paragraph “a”, . . . if committed by a person fourteen years of age or
older[,]” as a tier III offense. Id. § 692A.102(1)(c)(10).
Section 692A.103(4) requires the court to order the juvenile “to
register [as a sex offender] if the adjudication was for an offense
committed by force” and the juvenile was at least fourteen years old at
the time he or she committed the offense. Id. § 692A.103(4). In other
words, the court has no discretion whatsoever in ordering a juvenile to
register as a sex offender if it finds the applicable criteria. In this case,
the court found it had no discretion to waive the requirement of
registration because T.H. was fourteen at the time of the offense and T.H.
had committed the offense with force.
B. Caselaw from Other Jurisdictions. The Ohio Supreme Court
considered whether automatic, lifetime sex offender registration and
notification requirements were cruel and unusual as applied to juveniles
under the United States and Ohio Constitutions. 2 In re C.P., 967 N.E.2d
2The court also considered whether automatic, lifetime sex offender registration
and notification requirements violated the defendant’s due process rights. In re C.P.,
967 N.E.2d 729, 746–50 (Ohio 2012).
38
729, 737–46 (Ohio 2012). The court first undertook an examination
under the Eighth Amendment of the United States Constitution by
applying the two-step analysis from Graham v. Florida, 560 U.S. 48, 61,
130 S. Ct. 2011, 2022 (2010). Id. at 737–44. As to the first step, the
court considered whether a national consensus against automatic,
lifetime sex offender registration and notification requirements existed.
Id. at 738–39. The court observed that the Federal Sex Offender
Registration and Notification Act (SORNA) required states to conform to
its provisions or risk loss of federal funds. Id. at 738. Many states,
however, hesitated in complying with SORNA because it included
juveniles on the registries. Id. at 738.
As to the second step, the court exercised its independent
judgment to determine whether automatic, lifetime sex offender
registration and notification requirements violated the Eighth
Amendment. Id. at 740–44. The court considered the culpability of
juveniles, the nature of the offense omitted, the severity of the
punishment, and penological justifications. Id. First, it observed
juveniles are less morally culpable and more capable of change than
adult offenders. Id. at 740–41. The reprehensible acts of juveniles “are
less likely to reveal an unredeemable corruptness.” Id. at 740. Second,
the court stated the punishment embodied in the applicable Ohio statute
“appl[ied] to juveniles with a reduced degree of moral culpability” because
“a juvenile who did not kill or intend to kill has ‘twice diminished moral
culpability’ on account of his age and the nature of his crime.” Id. at 741
(quoting Graham, 560 U.S. at 69, 130 S. Ct. at 2027).
Third, the court stated automatic, lifetime sex offender registration
and notification requirements, with the possibility of the court lifting
them after twenty-five years, were “especially harsh punishments for a
39
juvenile.” Id. The court reasoned the punishment “is imposed at an age
at which the character of the offender is not yet fixed.” Id. (emphasis
added). Commenting on the stigma of the sex offender label, the court
further reasoned, “Before a juvenile can even begin his adult life, . . . the
world will know of his offense. . . . His potential will be squelched before
it has a chance to show itself.” Id.
Lastly, the court considered whether the theories of punishment
justified imposing automatic, lifetime sex offender registration and
notification requirements. Id. at 742–44. The court commented,
“Notification and registration anchor the juvenile offender to his crime”
instead of rehabilitating him. Id. at 742. The court reasoned the theory
of retribution did not justify imposing such a serious punishment when
juveniles were less culpable. Id. at 742–43. Additionally, the court
discounted the theory of deterrence because juveniles were less likely to
weigh future risks and consequences when making decisions. Id. at 743.
As for the theory of rehabilitation, the court concluded automatic,
lifetime sex offender registration and notification requirements thwarted
the rehabilitative goals of the juvenile court system. Id. at 744.
Specifically, publication of a juvenile’s offense not only made
reintegration into society more difficult but also inspired ostracism,
vigilantism, and public shaming. Id. at 743–44. In sum, the court held
the automatic imposition of lifetime sex offender registration and
notification requirements violated the Eighth Amendment. Id. at 744.
Moreover, the court found the requirements unconstitutional
under the prohibition against cruel and unusual punishment of the Ohio
Constitution. Id. at 746. The court reasoned the requirements
“frustrate[d] two of the fundamental elements of juvenile rehabilitation:
confidentiality and the avoidance of stigma.” Id. It stated,
 40
“Confidentiality has always been at the heart of the juvenile justice
system[,]” yet “the very public nature of the penalty” evidenced the lack of
proportionality. Id. at 745. The court further reasoned juvenile judges
possessed “absolutely no discretion” in imposing the requirements when
“the decided emphasis [of juvenile courts] should be upon individual,
corrective treatment.” Id. (second quoting In re Agler, 249 N.E.2d 808,
810 (Ohio 1969)). The court therefore held the punishment lacked
proportionality to the crime such that it “shock[ed] the sense of justice of
the community.” See id. at 746 (quoting State v. Chaffin, 282 N.E.2d 46,
49 (Ohio 1972)).
The Pennsylvania Supreme Court held that lifetime registration
under SORNA as applied to juveniles was unconstitutional. In re J.B.,
107 A.3d 1, 20 (Pa. 2014). The reasoning of J.B. is instructive, although
the court found a violation of due process rights and did not address
whether lifetime registration violated the prohibition against cruel and
unusual punishment. See id. at 14–20. The court reasoned “the
irrebuttable presumption that all juvenile offenders ‘pose a high risk of
committing additional sexual offenses’ . . . is not universally true and a
reasonable alternative means currently exist for determining which
juvenile offenders are likely to reoffend.” Id. at 14 (quoting 42 Pa. Cons.
Stat. § 9799.11(a)(4)). Notably, the court reasoned juvenile sex offenders
did not have a meaningful opportunity to challenge the presumption
because the delinquency hearing did not consider whether the individual
offender was at risk of reoffending. Id. at 17. Rather, the delinquency
adjudication automatically designated the juvenile as a sex offender with
the accompanying faulty presumption. Id. The court also rejected the
suggestion that a hearing twenty-five years in the future provided an
opportunity to be heard on the presumption. Id.
41
Rejecting the presumption, the court stated research shows “the
vast majority of juvenile offenders are unlikely to recidivate.” Id. at 18. It
also noted juveniles and adults are fundamentally different because of
the malleability of juveniles to rehabilitation. Id. In light of the fact that
“the concepts of balanced and restorative justice” guide the juvenile
justice system, the court reasoned “automatic registration remove[d] the
juvenile judges’ ability to consider the rehabilitative prospects of
individual juvenile sexual offenders.” Id. Lastly, the court reasoned
individualized risk assessment provided a reasonable alternative means
of evaluating which offenders posed a high risk of recidivism. Id. at 19.
In a case addressing whether mandatory lifetime postrelease
supervision of juvenile sex offenders was cruel and unusual, the Kansas
Supreme Court held that such supervision violated the Eighth
Amendment. State v. Dull, 351 P.3d 641, 660 (Kan. 2015). The
reasoning in Dull is persuasive as to the issue of whether automatic,
mandatory sex offender registration amounts to cruel and unusual
punishment.
In Dull, the court found the defendant failed to show a national
consensus against mandatory lifetime postrelease supervision for
juvenile sex offenders. Id. The court, however, used independent
judgment to conclude that such supervision was cruel and unusual for
two reasons. Id. First, the diminished moral culpability of juveniles
because of certain characteristics attributable to youth—“recklessness,
immaturity, irresponsibility, impetuousness, and ill-considered decision
making, along with their lower risks of recidivism”—tapered penological
justifications. Id. Second, mandatory lifetime postrelease supervision
was a “severe” sanction that “severely restricted” the juvenile’s liberty.
Id.
42
On the contrary, the Nebraska Supreme Court held lifetime
community supervision was not cruel and unusual under the Eighth
Amendment. State v. Boche, 885 N.W.2d 523, 538–39 (Neb. 2016). The
court applied its reasoning to resolve the issue of whether lifetime
community supervision was cruel and unusual under the Eighth
Amendment to address the parallel issue of whether lifetime registration
violated the same, even if such registration could be described as
punishment as to the defendant. See id. at 532–38. As to the first issue,
the court reasoned Nebraska’s statutory scheme allowed for a level of
supervision narrowly tailored to each offender and subject to yearly
review, with a requirement that the conditions imposed be the least
restrictive available based on the risk of recidivism and public safety. Id.
at 537. Moreover, the offender could appeal the restrictions. Id. at 533.
The court found Nebraska’s statutory scheme was “individualized,
adaptive, and incentivizes rehabilitation.” Id. at 538.
As to the second issue, the court held lifetime registration was not
punishment. Id. at 531–32. The court declined to revisit State v. Worm,
680 N.W.2d 151 (Neb. 2004), on this issue. Id. Moreover, the court
discounted the defendant’s brief citing studies examining the recidivism
rates of juvenile sex offenders because the defendant did not present the
studies to the district court, such that neither that court nor the
supreme court had evidence before it concerning his argument. Id. at
531.
Other jurisdictions have also found that sex offender registration is
not cruel and unusual. See United States v. Juvenile Male, 670 F.3d 999,
1010 (9th Cir. 2012) (holding the potential shame and humiliation
resulting from the twenty-five-year registration did not satisfy the high
standard necessary to violate the Eighth Amendment); In re J.C., 221
43
Cal. Rptr. 3d 579, 591 (Ct. App. 2017) (holding juvenile sex offender
registration was not punishment because the offender “failed to show the
limited degree of public disclosure applicable to juveniles required to
register pursuant to [the applicable statute] is sufficiently burdensome to
distinguish it from that applicable to adult offenders”); In re J.O.,
383 P.3d 69, 75 (Colo. App. 2015) (holding juvenile sex offender
registration was not punishment in the first instance and thus declining
to address whether such registration was cruel and unusual under the
Eighth Amendment); In re J.W., 787 N.E.2d 747, 762 (Ill. 2003) (holding
lifetime juvenile sex-offender registration did not constitute cruel and
unusual punishment because of the limited dissemination of the
offender’s information). But see People v. Dipiazza, 778 N.W.2d 264,
273–74 (Mich. Ct. App. 2009) (holding ten-year sex offender registration
requirement was cruel and unusual as applied to an eighteen-year-old
defendant in a consensual sexual relationship with a teen who was
almost fifteen years old).
II. Analysis of the Cruel and Unusual Punishment Clause as
Applied to This Case.
The underlying principle of the Cruel and Unusual Punishment
Clause is the “bedrock rule of law that punishment should fit the crime.”
State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). Based on this
principle, I would find automatic, mandatory sex offender registration as
applied to juveniles violates the cruel and unusual punishment clause of
the Iowa Constitution because of the lack of proportionality between the
punishment and the offense committed. 3
3That I addressed the issue of whether automatic, mandatory sex offender
registration is cruel and unusual under the Iowa Constitution does not preclude the
finding of a violation under the United States Constitution.
44
A. Low Recidivism and Sexual Reoffense Rates of Juvenile Sex
Offenders Coupled with Their Responsiveness to Rehabilitative
Treatment. The risk of juvenile sex offenders generally recidivating and
sexually reoffending are low. Empirical studies have been dispelling the
fear-based myth that juvenile sex offenders have a propensity to commit
sex offenses as adults. See Human Rights Watch, Raised on the Registry:
The Irreparable Harm of Placing Children on Sex Offender Registries in the
U.S. 30–31 (2013), https://www.hrw.org/sites/default/files/reports/
us0513_ForUpload_1.pdf [hereinafter Raised on the Registry]; Ashley R.
Brost & Annick-Marie S. Jordan, Punishment That Does Not Fit the Crime:
The Unconstitutional Practice of Placing Youth on Sex Offender Registries,
62 S.D. L. Rev. 806, 809 (2017) [hereinafter Brost & Jordan]; Amanda M.
Fanniff et al., Juveniles Adjudicated for Sexual Offenses: Fallacies, Facts,
and Faulty Policy, 88 Temp. L. Rev. 789, 793–95 (2016).
In State v. Graham, we acknowledged “most juvenile offenders who
commit sex offenses will outgrow their behavior and . . . juveniles
adjudicated delinquent for sex offenses have extremely low rates of
recidivism generally and even lower rates of sexual reoffending.”
897 N.W.2d 476, 484 (Iowa 2017). We charted comprehensive studies
finding that juveniles posed little risk of recidivism. Id. at 484–85 (citing
Michael F. Caldwell et al., An Examination of the Sex-Offender
Registration and Notification Act as Applied to Juveniles: Evaluating the
Ability to Predict Sexual Recidivism, 14 Psychol. Pub. Pol’y & L. 89, 96–
97, 101 (2008); Elizabeth J. Letourneau & Kevin S. Armstrong,
Recidivism Rates for Registered and Nonregistered Juvenile Sex Offenders,
20 Sexual Abuse: J. Res. & Treatment 393, 400 (2008); Franklin E.
Zimring et al., Investigating the Continuity of Sex Offending: Evidence from
the Second Philadelphia Birth Cohort, 26 Just. Q. 58 (2009); Franklin E.
45
Zimring et al., Sexual Delinquency in Racine: Does Early Sex Offending
Predict Later Sex Offending in Youth and Young Adulthood?,
6 Criminology & Pub. Pol’y 507 (2007)); see also Amy E. Halbrook,
Juvenile Pariahs, 65 Hastings L.J. 1, 13–15 (2013) [hereinafter Halbrook]
(explaining in depth the Caldwell, Letourneau, and Zimring studies that
found low risks of recidivism and sexual reoffending among juvenile sex
offenders).
The Office of Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking of the United States Department of Justice
recently published a research brief reviewing the state of research on
juvenile sexual reoffending and assessing the current practice in juvenile
sex offender management. Christopher Lobanov-Rostovsky, U.S. Dep’t of
Justice, Recidivism of Juveniles Who Commit Sexual Offenses (July 2015),
https://smart.gov/pdfs/JuvenileRecidivism.pdf. The brief reached some
key conclusions from the collected empirical evidence. Id. at 5.
First, the observed sexual recidivism rates of juveniles who
commit sexual offenses range from about 7 to 13 percent
after 59 months, depending on the study. Recidivism rates
for juveniles who commit sexual offenses are general lower
than those observed for adult sex offenders. . . . [R]ecidivism
data suggest that there may be fundamental differences
between juveniles who commit sexual offenses and adult
sexual offenders, particularly in their propensity to sexually
reoffend.
Second, a relatively small percentage of juveniles who
commit a sexual offense will sexually reoffend as adults. The
message for policymakers is that juveniles who commit
sexual offenses are not the same as adult sexual offenders,
and that all juveniles who commit a sexual offense do not go
on to sexually offend later in life. . . .
Finally, juveniles who commit sexual offenses have higher
rates of general recidivism than sexual recidivism. This
suggests that juveniles who commit sexual offenses may
46
have more in common with other juveniles who commit
delinquent acts than with adult sexual offenders . . . .
Id. (emphases added).
Additionally, juveniles are more responsive to treatment and
rehabilitation than adult sex offenders. Carole J. Petersen & Susan M.
Chandler, Sex Offender Registration and the Convention on the Rights of
the Child: Legal and Policy Implications of Registering Juvenile Sex
Offenders, 3 Wm. & Mary Pol’y Rev. 1, 31 (2011). Juvenile sex offenders
who receive treatment for their sexual offenses exhibit lower recidivism
rates than both treated adult sex offenders and untreated juvenile sex
offenders. Phoebe Geer, Justice Served? The High Cost of Juvenile Sex
Offender Registration, 27 Dev. Mental Health L. 34, 42 (2008) [hereinafter
Geer].
Juvenile sex offenses do not necessarily signify permanent sexual
deviance but appear to be exploratory in nature and a product of
misplaced sexual curiosity. Id.; see Catherine L. Carpenter, Throwaway
Children: The Tragic Consequences of a False Narrative, 45 Sw. L. Rev.
461, 492 (2016) [hereinafter Carpenter] (“[P]oor social competency skills
and deficits in self-esteem can best explain sexual deviance in children,
rather than paraphilic interests and psychopathic characteristics that
are more common in adult offenders.” (quoting Ass’n for the Treatment
of Sexual Abusers, Adolescents Who Have Engaged in Sexually Abusive
Behavior: Effective Policies and Practices, (Oct. 30, 2012),
www.atsa.com/pdfs/Policy/AdolescentsEngagedSexuallyAbusiveBehavior.
pdf [https://perma.cc/5VKV-6SPD])).
The United States Supreme Court has recognized the malleability
of juveniles and their capacity for change in the landmark Roper–
Graham–Miller trio. E.g., Miller v. Alabama, 567 U.S. 460, 471–73,
132 S. Ct. 2455, 2464–65 (2012); Graham, 560 U.S. at 68, 130 S. Ct. at
47
2026; Roper v. Simmons, 543 U.S. 551, 569–70, 125 S. Ct. 1183, 1195
(2005). “[C]hildren are constitutionally different from adults . . . .”
Miller, 567 U.S. at 471, 132 S. Ct. at 2464. Thus, juveniles “are less
deserving of the most severe punishments” because of their “diminished
culpability and greater prospects for reform.” Id. (first quoting Graham,
560 U.S. at 68, 130 S. Ct. at 2026). The Supreme Court relied on three
points of difference between juveniles and adults. Id. First, juveniles
“have a ‘lack of maturity and an underdeveloped sense of
responsibility.’ ” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).
Second, they “are more vulnerable . . . to negative influences and outside
pressures.” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).
Lastly, their “character is not as ‘well formed’ as an adult’s; his [or her]
traits are ‘less fixed’ and his [or her] actions less likely to be ‘evidence of
irretrievabl[e] deprav[ity].’ ” Id. (alterations in original) (quoting Roper,
543 U.S. at 570, 125 S. Ct. at 1195). Furthermore, “[w]e have
emphasized that the constitutionally significant distinction between
adults and children is applicable to all crimes, not just some crimes.”
State v. Crooks, 911 N.W.2d 153, 178 (Iowa 2018) (Appel, J., concurring
in part and dissenting in part).
Accordingly, because of a low risk of recidivism in tandem with
responsiveness to rehabilitative treatment, the current policies and
practices designed to prevent adult sexual reoffending lack
proportionality between the crime and the punishment as applied to
juveniles.
B. Particularly Harsh Consequences on Youth. Although the
risk of reoffending is low, the consequences that juveniles encounter are
especially severe. They encounter “incredible barriers to housing,
employment, and education.” Brost & Jordan, 62 S.D. L. Rev. at 820;
48
accord Stand Up for What’s Right and Just (SURJ), Nat’l Juvenile Justice
Network, The Case for Modifying Juvenile Sex Offender Registry
Requirements in Delaware 3 (July 2011),
http://www.njjn.org/uploads/digital-library/DE_Juvenile-Sex-Offender-
Research-Brief_SURJ_7-30-11.pdf [https://perma.cc/6HQA-WV24]. The
label of sexual offender branded like an indelible scarlet letter makes it
difficult for juveniles on the registry to integrate into society and become
a productive, contributing member of society. See People ex rel. J.L.,
800 N.W.2d 720, 725 (S.D. 2011) (Meierhenry, J., concurring specially);
Carpenter, 45 Sw. L. Rev. at 472 (“Without secure prospects for
employment, education, or a stable living situation, children labeled as
sex offenders are destined to spiral downward.” (Footnotes omitted.)).
The adverse psychological damage to a child’s identity formation
and social development cannot be understated. See Raised on the
Registry 50–55. Juveniles face stigmatization, shame, and isolation from
family and friends. Id. at 50–51; see generally Stacey Hiller, The Problem
with Juvenile Sex Offender Registration: The Detrimental Effects of Public
Disclosure, 7 B.U. Pub. Int. L.J. 271, 292 (1998). At least twenty percent
of juveniles on the registry will attempt suicide because of social stigma
and psychological harm. Brost & Jordan, 62 S.D. L. Rev. at 823.
Among 281 juvenile sex offenders and family members of fifteen
additional juvenile sex offenders interviewed by the Human Rights
Watch, 250 of them (84.5 percent) described feeling depressed and
isolated. Raised on the Registry 51. They also had difficulty in
developing relationships and had thoughts of suicide. Id. In fact, fifty-
eight individuals (19.6 percent) attempted suicide. Id.
49
Phoebe Geer described the damaging impact of registration and
notification requirements as well as the stigmatization of the sex offender
label:
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.
Geer, 27 Dev. Mental Health L. at 49 (emphases added) (quoting
Robert E. Shepherd, Advocating for the Juvenile Sex Offender, Part 2,
21 Crim. Just. 52, 53 (2007)).
Juvenile sex offenders on the registry often encounter vigilante
attacks. The Human Rights Watch reported that among 296 cases that it
had examined, 154 (fifty-two percent) juvenile sex offenders experienced
either violence or threats of violence against themselves or family
members because of their registration. Raised on the Registry 56.
Consequences of the juvenile’s registration status also attaches to
the whole family. Halbrook, 65 Hastings L.J. at 18; Raised on the
Registry 60–64. Family members of registrants encounter “isolation,
threats, harassment, stress, and housing displacement.” Halbrook,
65 Hastings L.J. at 18.
Additionally, pursuant to Iowa Code chapter 692A, juvenile sex
offenders must adhere to rigid restrictions on movement. For example,
50
T.H. must notify in person the county sheriff within five business days if
he changes his residence, employment, or school. Iowa Code
§ 692A.104(1)–(2) (emphasis added). T.H. must appear in person to verify
the location of his residence, employment, and school every three
months. Id. § 692A.108(1)(c).
The statute also imposes a number of exclusion zones. Except for
the school he attends, T.H. may not be present upon, nor loiter within
300 feet of, the property of an elementary or secondary school. Id.
§ 692A.113(1)(a)–(b). Additionally, T.H. may not be present upon (absent
prior written permission by the library administrator), nor loiter within
300 feet of, the property of a public library. Id. § 692A.113(1)(f)–(g). T.H.
may not be present upon (unless he receives written permission from the
child care facility), nor loiter within 300 feet of, the property of a child
care facility. Id. § 692A.113(1)(d)–(e). He may not be present upon, nor
loiter within 300 feet of, “any place intended primarily for the use of
minors.” Id. § 692A.113(1)(h). T.H. may not loiter on the premises of any
facility for dependent adults and may not be present at an event that
provides services or programming for dependent adults. Id.
§ 692A.115(1).
Furthermore, the statute imposes employment restrictions. See id.
§§ 692A.113(3)(a)–(e), .115. For example, while on the registry, T.H. may
not work or volunteer at a “public or nonpublic elementary or secondary
school, child care facility, or public library.” Id. § 692A.113(3)(c). He
may not work or volunteer at “any place intended primarily for use by
minors including but not limited to a playground, a children’s play area,
recreational or sport-related activity area, a swimming or wading pool, or
a beach.” Id. § 692A.113(3)(d).
 51
Lastly, the statute imposes residency restrictions. If the court
requires T.H. to register after becoming an adult, he may not reside
within 2000 feet of a school or child care facility. Id. § 692A.114(2).
The punishment is especially severe because confidentiality is
nonexistent. The public may view T.H.’s personal information on the sex
offender registry website. Id. § 692A.121(1). The registry contains T.H.’s
full name; photographs; date of birth; home address; and physical
description, including scars, marks, or tattoos. Id.
§ 692A.121(2)(b)(1)(a)–(e). Furthermore, the registry provides the
statutory citation and text of his offense. Id. § 692A.121(2)(b)(1)(f). It
also provides information on whether T.H. is subject to residency
restrictions and exclusion zones. Id. § 692A.121(2)(b)(1)(g)–(h). The
public can also request additional information concerning T.H. by
contacting the county sheriff’s office and simply providing T.H.’s name
and T.H.’s date of birth. Id. § 692A.121(5)(a). Additional information
runs the gamut—a list of schools T.H. attended, employment
information, locations and dates of any temporary lodging, and his
vehicle information. Id. § 692A.121(5)(b).
In sum, registration and notification requirements nullify the
private nature of our juvenile court system. Moreover, the stigmatization
of sexual offenders perpetuates the mistakes of youth into the
permanence of adulthood. Accordingly, I would find the punishment is
disproportionate to the crime, especially in light of the diminished moral
culpability of juveniles. See Crooks, 911 N.W.2d at 179 (“[C]ulpability is
a cornerstone of proportional punishment.”).
C. No Meaningful Opportunity to Show Rehabilitation. The
purported principal goal of the juvenile justice system is rehabilitation
rather than punishment. McKeiver v. Pennsylvania, 403 U.S. 528, 544
52
n.5, 91 S. Ct. 1976, 1986 n.5 (1971). Yet juvenile sex offenders have no
meaningful opportunity to show rehabilitation.
Iowa Code section 692A.128 provides an escape valve in theory but
not in practice. A court may not grant an application to modify the
registration requirements unless the application meets all of the following
criteria:
a. The date of the commencement of the requirement
to register occurred at least two years prior to the filing of
the application for a tier I offender and five years prior to the
filing of the application for a tier II or III offender.
b. The sex offender has successfully completed all sex
offender treatment programs that have been required.
c. A risk assessment has been completed and the sex
offender was classified as a low risk to reoffend. The risk
assessment used to assess an offender as a low risk to
reoffend shall be a validated risk assessment approved by
the department of corrections.
d. The sex offender is not incarcerated when the
application is filed.
e. The director of the judicial district department of
correctional services supervising the sex offender, or the
director’s designee, stipulates to the modification, and a
certified copy of the stipulation is attached to the
application.
Iowa Code § 692A.128(2)(a)–(e).
Section 692A.128 does not provide a realistic chance for release.
Although section 692A.128 provides a purported escape valve, this
escape valve is inadequate because it requires the approval of the
director of the judicial district department of correctional services. A
unilateral decision by the director nullifies any meaningful opportunity to
be heard on the issue of rehabilitation because the director’s stipulation
is likely unforthcoming. Section 692A.128(6) exempts the requirement of
this stipulation if the offender is no longer under the supervision of the
53
juvenile court or a judicial district department of correctional services.
Id. § 692A.128(6). This exemption does not change the dynamics of the
odds stacked up against the offender because it requires an additional
hurdle: the agreement of the department of corrections to perform a risk
assessment on the offender. See id. As with the stipulation, such an
agreement is within the unilateral authority of the department of
corrections.
Furthermore, section 692A.128 mandates the completion of all
required sex offender treatment programs. Yet section 692A.103(4)
requires juvenile judges to impose mandatory, automatic sex offender
registration without any individualized risk assessment prior to the
imposition of registration requirements. Section 692A.103(4) does not
give discretion to juvenile judges to examine the individual’s prior
criminal record, evaluate his or her personality and social history, assess
reports of any psychiatric examinations of him or her, and any other
pertinent information in relation to whether to impose the requirements.
Without such an individualized risk assessment, it is rather difficult to
know which treatment program a juvenile sex offender should be
required to undergo.
I now turn to Iowa Code chapter 232. Through its interpretation of
this chapter, the majority reasons juveniles have an opportunity to be
heard on the question of mandatory registration at the close of
jurisdiction of the juvenile court. Specifically, section 232.54(1)(i)
provides,
With respect to a dispositional order requiring a child to
register as a sex offender pursuant to chapter 692A, the
juvenile court shall determine whether the child shall remain
on the sex offender registry prior to termination of the
dispositional order.
54
Id. § 232.54(1)(i) (emphasis added). This purported escape valve,
however, provides for a hearing at the wrong juncture. The court should
hold a hearing concerning rehabilitation after the juvenile has an
opportunity to develop maturity and present corresponding evidence of
rehabilitation and mitigating circumstances. Ordinarily, this should
occur sometime after the child reaches the age of twenty-five when full
maturity and character formation is ordinarily complete. A court may
deny the opportunity to show rehabilitation and maturity at the early age
of eighteen, prior to reaching full maturity, only upon a showing of
incorrigibility and irredeemable corruption. The record shows no
evidence that T.H. received a Miller-type hearing showing that he is
incorrigible and irredeemably corrupt.
Our juvenile justice system should not forget the principle on
which it was founded—juveniles are constitutionally different from
adults. Moreover, “seek[ing] to hold juveniles accountable for their
actions and to protect the public does not negate the concept that
rehabilitation remains a more important consideration in the juvenile
justice system than in the criminal justice system . . . .” People v. Taylor,
850 N.E.2d 134, 141 (Ill. 2006); accord In re S.K., 587 N.W.2d 740, 742
(S.D. 1999) (stating the purpose of the juvenile court system is to
rehabilitate, not punish). Juvenile sex offenders should have a
meaningful opportunity to demonstrate rehabilitation and maturity after
their characters are fully formed.
III. Conclusion.
Based on the foregoing reasons, I would vacate the decision of the
court of appeals, vacate the judgment of the district court, and remand.
Wiggins and Hecht, JJ., join this concurrence in part and dissent
in part.
55
#16–0158, In re T.H.
MANSFIELD, Justice (concurring in part and dissenting in part).
I concur in parts III.A and III.B of the court’s opinion and in part
III.C.2’s conclusion that Iowa’s sex offender registration requirements are
not unconstitutional as applied to juveniles. However, I cannot join
much of the discussion in part III.C.1.
We have held that Iowa’s sex offender registration laws do not
constitute punishment under either the United States or the Iowa
Constitutions. See Formaro v. Polk County, 773 N.W.2d 834, 843–44
(Iowa 2009); State v. Seering, 701 N.W.2d 655, 666–68 (Iowa 2005). I do
not agree that registration which is nonpunitive for adults becomes
punitive when applied in a more lenient way to juveniles. 4
I. No Caselaw Supports the Majority’s Distinction.
The majority cites no cases supporting a constitutional distinction
between registration of adult sex offenders and registration of juvenile
sex offenders. There are many cases to the contrary.
A California appellate court has declined to hold that juvenile sex
offender registration, as opposed to adult sex offender registration,
constitutes punishment. In re J.C., 221 Cal. Rptr. 3d 579, 593 (Ct. App.
2017). There, the court rejected the juvenile’s argument that “children
were different” and that registration of juveniles could still be
punishment notwithstanding a previous finding under both the State
and the Federal Constitutions that registration of adults was not. Id. at
588–91 (citing In re Alva, 92 P.3d 311, 313 (2004)). Although the court
4As noted by the majority, one key distinction is that the juvenile court has
discretion to terminate the registration requirement at the termination of the
dispositional order. See Iowa Code § 232.54(1)(i) (2016). That dispositional order will
terminate no later than January 2019, when T.H. turns eighteen. The juvenile court
will have discretion to terminate T.H.’s registration at that point.
56
noted juvenile identifying information was not published on the registry
website, other disclosure requirements still applied to juveniles. Id. at
590–91.
Likewise, the Nebraska Supreme Court saw “no principled reason”
to depart from its holding that lifetime sex offender registration was not
punishment, just because the offense was committed by a juvenile. See
State v. Boche, 885 N.W.2d 523, 531–32 (Neb. 2016). It added, “Other
jurisdictions which have considered the issue as applied to juveniles
have reached the same conclusion.” Id. at 532.
The Illinois Supreme Court similarly rejected a claim that the sex
offender registry of juveniles involved punishment. In re J.W., 787
N.E.2d 747, 762 (Ill. 2003). The court had previously held that the
registration requirements did not constitute punishment as applied to
adults. See id. The court was, however, “not persuaded that requiring a
juvenile sex offender to register and allowing a very limited public access
to notification concerning the juvenile’s status as a sex offender compels
a different result.” Id.
The South Carolina Supreme Court held in In re Justin B. that
mandatory sex offender registration was nonpunitive, even as applied to
juveniles. 799 S.E.2d 675, 679 (S.C. 2017). According to the court,
The purpose of the sex offender registry has nothing to do
with retribution, and any deterrent effect of registration
derives from the availability of information, not from
punishment. Instead, the purpose of the registry and the
electronic monitoring requirement is to protect the public
and aid law enforcement.
Id. There, the registration requirements applied equally to all offenders
“convicted or declared delinquent for criminal sexual conduct with a
minor in the first degree,” “regardless of age.” Id. at 677.
 57
In Mississippi, the state supreme court upheld the required
registration of a juvenile sex offender. L.B.C. v. Forrest Cty. Youth Ct., ___
So. 3d ___, ___, 2017 WL 5897905, at *6 (Miss. 2017) (en banc). There,
the court noted that courts have no discretion regarding whether a
qualified delinquent must register as a sex offender: “As long as the
delinquent is fourteen years old and committed an offense that involved
the use of force, the delinquent is required to register.” Id. at *5.
Further, there were no confidentiality distinctions between juveniles and
adults who must register; the names and addresses of offending juveniles
were not confidential so that they may be used for purposes of the
registry. Id. The court concluded that “the purpose of the Mississippi
Sex Offenders Registration law is to assist law enforcement and protect
the community and vulnerable populations.” Id. The court continued,
“The requirement to register as a sex offender does not punish the
registrant but protects the public from repeat offenses. This purpose is
no less a valid concern with juvenile delinquents.” Id.
In In re J.O., the Colorado Court of Appeals found that the
statutory sex offender registration of a juvenile did not amount to
punishment. 383 P.3d 69, 75 (Colo. App. 2015). Noting that the juvenile
could petition to be removed from the registry after successfully
completing and being discharged from his sentence, the court “decline[d]
to depart from Colorado cases holding that sex offender registration . . .—
even as applied to juveniles—does not constitute punishment.” Id.
From reading the majority opinion, one might think that a decision
of the Maryland Court of Special Appeals supports the majority’s
reasoning. See In re Nick H., 123 A.3d 229 (Md. Ct. Spec. App. 2015).
However, that case actually found that registration of juvenile sex
offenders was not punitive. Id. at 250–51.
 58
It is true that in some of the foregoing states, information about
registered juvenile sex offenders is not readily available to the public.
But in others, it is, just as in Iowa. See Justin B., 799 S.E.2d at 680;
L.B.C., ___ So. 3d at ___, 2017 WL 5897905, at *5.
I might not make the same policy choice as our legislature, but
that is not the issue. As noted by the majority, “The question is whether
the regulatory means chosen are reasonable in light of the nonpunitive
objective.” Smith v. Doe, 538 U.S. 84, 105, 123 S. Ct. 1140, 1154
(2003). 5
Including both adults and juveniles who commit forcible sex
offenses on the publicly available sex offender registry meets the
foregoing standard. I suspect Iowans don’t care whether a confirmed
child molester committed the offense at the age of nineteen or seventeen.
If the person is living in their neighborhood, they want to know that. As
I’ve already noted, the legislature has provided the juvenile court with
discretion to remove the juvenile from the registry at the termination of
the dispositional order.
II. Social Science Is an Insufficient Basis for the Majority’s
Distinction.
I would be more cautious than the majority in relying on social
science. Whenever we do this, there is a serious danger we will get it
wrong, i.e., that we will do exactly what we accuse the United States
Supreme Court of having done.
5Justice Appel’s dissent in part discusses one state where the supreme court
found both adult and juvenile sex offender registration to be punitive. In re C.P., 967
N.E.2d 729, 734 (Ohio 2012). Like the majority, though, the dissent cites no
jurisdiction where the courts have found registration to be regulatory for adults and
punitive for juveniles.
59
The majority places the most reliance on a 2013 report issued by
the Division of Criminal and Juvenile Justice Planning of the Iowa
Department of Human Rights. Div. of Criminal & Juvenile Justice
Planning, Iowa Dep’t of Human Rights, Iowa Sex Offender Research
Council Report to the Iowa General Assembly (Jan. 2013),
https://humanrights.Iowa.gov /sites/default/files/media/SORC_1-15-
13_Final_Report_%5B1%5D.pdf
[https://web.archive.org/web/20170323233135/https://humanrights.
iowa.gov/sites/default/files/media/SORC_1-15-13_Final_Report[1].pdf].
I have found this division’s reports helpful in the past, but only
when they are quoted and summarized accurately. That isn’t what the
majority has done here.
First, the majority claims that “juvenile sex offenders exhibit
drastically lower recividism rates than their adult counterparts.” The
report doesn’t actually say this. Rather, it states, “Much research has
been conducted on the differences between juvenile and adult sex
offenders, some of which suggests that juveniles exhibit lower recidivism
rates and respond better to sex offender treatment than adults.” Id. at
12 (emphasis added).
Second, the majority includes the following quotation from the
report: “[S]tudies have found extremely low rates of sexual reoffending for
juveniles and that sexual reoffending rates are much lower than non-
sexual re-offenses even among high-risk juveniles committed to
correctional facilities.” The majority, however, omits a key word from the
quotation—“some.” The actual text reads, “Some studies have found
extremely low rates of sexual reoffending for juveniles and that sexual
reoffending rates are much lower than non-sexual re-offenses even
60
among high-risk juveniles committed to correctional facilities.” Id.
(emphasis added) (citations omitted).
Third, according to the majority, the report indicates that multiple
studies have shown no significant difference in reoffense rates between
registered and nonregistered juveniles. This does seem to be a fair
summary of the report. However, the report also seems to reach the
same conclusion about adult registration—i.e., that it does not reduce
subsequent offending. Id. at 13. The majority doesn’t mention this.
Social science has a role in judicial decision-making, but that role
should be very limited when we are deciding where a constitutional
boundary lies. For the most part, the executive and legislative branches
of government are better at evaluating and acting on social science. The
report discussed by the majority was, in fact, authored by the executive
branch of Iowa’s government and intended to be read by the legislative
branch. 6
III. The Majority Opinion Will Have Collateral Consequences.
Lastly, today’s decision that juvenile sex offender registration is
punitive necessarily means that the Ex Post Facto Clause applies. See
U.S. Const. art. I, § 9, cl. 3; Iowa Const. art. I, § 21. Therefore, in Iowa, a
juvenile can no longer be subjected to a new or different registration
requirement enacted after his or her underlying conviction. Prosecutors,
6The majority may well be right that juvenile sex offenders are statistically less
prone than adult sex offenders to reoffend. According to a more recent survey of
studies, “Recidivism rates for juveniles who commit sexual offenses are generally lower
than those observed for adult sexual offenders.” Christopher Lobanov-Rostovsky, U.S.
Dep’t of Justice, Recidivism of Juveniles Who Commit Sexual Offenses 5 (July 2015),
https:// www.smart.gov/pdfs/JuvenileRecidivism.pdf. (Justice Appel’s dissent in part
cites this particular compendium.) My point is that we are not equipped to weigh all
these studies nor should we be using our interpretation of them as a basis for drawing
a constitutional line in the sand.
61
defense lawyers, and trial judges will need to sort through this
consequence of today’s ruling.
For these reasons, I too would affirm the district court and the
court of appeals, but I cannot join the court’s opinion in its entirety.
Waterman and Zager, JJ., join this concurrence in part and
dissent in part.