In Alabama, some juvenile sex offenders which have been adjudicated low-level offenders have protection from the harshness of the Alabama Sex Offender Registration and Notification Act. After consideration of evidence from a juvenile court, the judge may exclude a child from notification or, at least, limit the requirements as the particular facts demand.
However, in an odd quirk of statutory language, many juveniles which are automatically transferred to adult court are subject the full impact of lifetime, mandatory registration and notification scheme.
For these children, the state has placed a target on their back for sexual predators. According to this study performed by Dr. LeTourneau of Johns Hopkins University, children on the registry were five times as likely to have been approached by an adult for sex in the past year, compared to nonregistered children.
The study also showed:
- Children on the registry were four times as likely to have attempted suicide in the last 30 days, compared to nonregistered children.
- Registered children were nearly twice as likely to have experienced a sexual assault.
Dr. LeTourneau concludes,
“The process of subjecting children to sex offender registration and notification requirements not only conveys to the child that he or she is worthless, it also essentially alerts the rest of the world that a child has engaged in an illegal sexual behavior,” says study lead Elizabeth Letourneau, PhD, a professor in the Bloomberg School’s Department of Mental Health and director of the Moore Center for the Prevention of Child Sexual Abuse. “Not only is this policy stigmatizing and distressing, but it may make children vulnerable to unscrupulous or predatory adults who use the information to target registered children for sexual assault.”
I argue that the Alabama Sex Offender Registration and Community Notification Act (hereinafter “ASORCNA)” is unconstitutional as applied to minor children like this because it violates his due process rights and is a cruel and unusual punishment.
The Alabama statute, without question, is the most comprehensive in the nation. If convicted as a youthful offender, a child will be required to SORNA register as an adult for life as follows:
- His name, photograph, address of residence and employment and where he goes to
school, his physical description, the license plate and description of any vehicle he
uses, the criminal history of the sex offense for which he was convicted, the text
of the criminal provision of the sex offense for which he has been convicted and
his current status will be posted on a website available to the public for the rest of
his life. Ala. Code § 15-20A-8 (a)(1)-(10).
- If he fails to register, he will be guilty of having committed a class C felony,
which carries a prison term of up to ten years. Ala. Code §§ 15-20A-10(j); 13A-5-
- He will be required to appear during his birth month and every three months
thereafter to reverify all of the information on file with the registry. Ala. Code §
- Any time he changes residences or schools or employment, or any other change
which affects the information required for registration, he must appear in person
“immediately” to re-register. Ala. Code § 15-20A-10(b-c).
- His driver’s license or ID shall bear designation that he is a registered sex offender. §15-
- He will subject to electronic monitoring supervised by the Board of Pardon and Paroles for 10 years following release.
- There are housing and employment restrictions. A child may be required to move out of their home if minor sibling resides there, regardless whether the sibling was the victim or even the same sex as the offending child.
ASORCNA, and other registration schemes like it, do not reduce recidivism when applied to minor children because juvenile recidivism is already statistically less than five percent. If anything, evidence shows that registration and notification for juveniles may actually increase the level of recidivism due to the ostracism and lack of opportunity for healthy social connections that juveniles experience.
Minor children have transitory character traits and lessened culpability. Because of this, they are entitled to individualized review of the risk of recidivism before any adult registration requirement can be imposed on them. In 2014, the Pennsylvania Supreme Court ruled that Pennsylvania’s own lifetime registration requirements for violated due process when applied to youth offenders. In the interest of J.B. 107 A. 3d 1, 35 (Pa. 2014). The majority opinion held that “statutes that infringed upon protected interests or denied benefits by utilizing presumptions that the existence of one fact was statutorily conclusive of the truth of another fact” violated due process when there was no “meaningful opportunity to contest the validity of the second fact.” Id., at 25 (citing Vlandis v. Kline, 412 U.S. 441 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535 (1971)). Like the Pennsylvania statute, Alabama’s law creates an irrebuttable presumption that all minor children who have committed certain sex offenses are likely to recidivate without giving them a meaningful opportunity to contest this presumption.
Furthermore, juvenile “impulsivity and sexual curiosity” lower as children become more mature, which leads to the lower rate of sex offense recidivism. J.B., at 17. Alabama’s juvenile code has an acceptable alternative for determining whether an offender is likely to recidivate, namely by assessing each juvenile individually to determine what is in their best interest and the best interest of the community.
The Supreme Court of Ohio addressed this issue in In re C.P., In holding that the federal registration requirements violated due process, the court said that “fundamental fairness is not a one-way street”. In re C.P., at 750. In other words, fundamental fairness does not mean that states can lessen due process requirements for juveniles. Instead, fundamental fairness mandates “additional procedural safeguards for juveniles in order to meet the juvenile system’s goals of rehabilitation and reintegration into society.” Id. Several states give discretion to courts to weigh specific facts and circumstances in making the decision as to whether registration will be required of an adjudicated juvenile. See A.R.S. 13-3821(D); IC 11-8-8-5(c); M.G.L. 6 § 178E(c); N.C.G.S. §14-208.26(a); 10A Okl.St. § 2-8-104A-B; RI ST § 11-37.1-4(j); VA Code § 9.1-902G; RCW 9A.44.143. In those states, unlike Alabama, lifetime registration is not automatically imposed simply because of the nature of the offense. Courts are allowed to determine whether registration is vital to the public interest. To provide fundamental fairness in the adjudication of minor children, Alabama should, at a minimum, join the ranks of these states.
This tradition of treating juveniles differently than adults is based on our knowledge of child brain development. The United States Supreme Court held, ten years ago, that juveniles are inherently less culpable than adults for their actions because they are not fully developed, which leaves them more impulsive, susceptible to outside forces and with transitory traits of character. Roper v. Simmons, 543 U.S. 551, 569-570 (2005) (finding the imposition of the death penalty on juveniles to be cruel and unusual punishment). More recently, in 2010, the Supreme Court ruled that life without parole sentences for non-homicide crimes is cruel and unusual punishment when applied to juveniles. Graham v. Florida, 560 U.S. 48, 68 (2010). Based on empirical evidence of the American Medical Association and the American Psychological Association, the Supreme Court of the United States held that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds . . . parts of the brain involved in behavior control continue to mature through late adolescence.” Id., at 68. The Court also recognized that “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id., at 68, quoting Roper, at 570. The Court stated, moreover, that, “it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. ASORCNA ignores the judicial findings of fact by the Supreme Court of the United States by declaring that certain children are not capable of change or rehabilitation and should be punished as adults simply because of the nature of the crime, without taking into account the individual, transitory characteristics of the child.
In 2006, Franklin Zimring, a law professor at the University of California, conducted a study of 6,000 juveniles and determined that “juvenile sex offending did not predict adult sex offending” because “juvenile sex offenders were not statistically more likely than juvenile non-sex offenders to commit an adult sex offense.” Amy. E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1, 14 (2013).
Just five years ago, the Supreme Court of the United States voided a portion of Alabama’s Juvenile Code which automatically sentenced juveniles to life imprisonment without parole for homicides as a violation of the United States Constitution’s 8th Amendment ban on cruel and unusual punishment. Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012). The Supreme Court’s reasoning was as follows, “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Id., at 2469. The Court invoked its previous rulings, acknowledging that, “we have by now held on multiple occasions that a sentencing rule permissible for adults may not be so for children.” Id. at 2470. Alabama has not, to date, evaluated the constitutionality of mandatory lifetime registration provisions of ASORCNA under the United States Supreme Court’s rulings that adolescent development must be taken into consideration when determining punishment and culpability for the juvenile defendant.
Registration and notification denies the youth the ability to develop a positive self-identity. Id. “For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken . . . It will be a constant cloud, a once every three month reminder to himself and the world that he cannot escape the mistakes of his youth.” In re C.P., 697 N.E. 2d 729, 741-42 (Ohio 2012). This is disastrous to both the juvenile justice goal of rehabilitation and for preventing recidivism, as is the stated goal of SORNA. “Crime is more likely to occur when bonds with mainstream society are weakened — that is when individuals lose or fail to develop social anchors such as school involvement, stable employment, stable residence, military service, job advancement, engagement with prosocial institutions, becoming a part of prosocial friendship networks, fitting into a neighborhood, having prospects for marriage or committed relationships or raising a family.” Mark Chaffin, Our Minds are Made Up — Don’t Confuse us with the Facts, University of Oklahoma Health Sciences Center, Child Maltreatment Vol. 13 No. 2, 110, 113 (May 2008).
Secondly, ASORCNA is cruel and unusual punishment as applied to minor children. The state argues that its not “punishment.” As the statutes applies to juveniles, the statutory scheme is “‘so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.'”Smith v. Doe, 538 U.S. 84 (U.S. 2003) However, it meets the criteria for punishment set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Moreover, there is a national trend against juvenile registration. ASORCNA does not take into account the rehabilitative potential of minor children and, therefore, does not meet the penological goals of rehabilitation and integration.