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In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MELISSA ARBUS SHERRY
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
Whether application of the registration and notifica tion provisions of the Sex Offender Registration and Notification Act (SORNA) to a juvenile who was adjudi cated delinquent under the Federal Juvenile Delinquency Act before SORNA's enactment violates the Ex Post Facto Clause of the Constitution.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.
The amended opinion of the court of appeals (App., infra, 1a-36a) is reported at 590 F.3d 924. The original opinion of the court of appeals is reported at 581 F.3d 977.
The judgment of the court of appeals was entered on September 10, 2009, and the opinion was amended on January 5, 2010. On December 2, 2009, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including January 8, 2010. On
January 4, 2010, Justice Kennedy further extended the time to February 7, 2010. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
Article I, Section 9, Clause 3 of the United States Constitution provides: "No Bill of Attainder or ex post facto Law shall be passed."
The relevant statutory provisions are reprinted in an appendix to this petition. App., infra, 42a-64a.
In Smith v. Doe, 538 U.S. 84 (2003) (Smith), this Court held that a state sex offender registration law, which required sex offenders to register as such and then made much of the information public, did not constitute retroactive punishment prohibited by the Ex Post Facto Clause as applied to a person whose conviction preceded enactment of the law. In this case, the Ninth Circuit dis tinguished Smith and held that the retroactive applica tion of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16901 et seq., violated the Ex Post Facto Clause as applied to a federal adjudication of juvenile delinquency before SORNA's enactment. The court of appeals therefore overturned a condition of su pervision that required respondent to register as a sex offender, holding that respondent "may not constitution ally be obligated to register as a sex offender under SORNA." App., infra, 36a.
1. Congress initially enacted national standards for sex offender registration in 1994 in the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (Wetterling Act). 42 U.S.C. 14071. By 1996, every State had enacted some version of a sex of fender registration and notification law. See Smith, 538 U.S. at 89-90. On July 27, 2006, Congress enacted SORNA, which was "generally designed to strengthen and increase the effectiveness of sex offender registra tion and notification for the protection of the public," as well as "to eliminate potential gaps and loopholes under the pre-existing standards by means of which sex offend ers could attempt to evade registration requirements or the consequences of registration violations." Office of the Attorney Gen., U.S. Dep't of Justice, Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8895 (2007). To achieve those ends, SORNA "establishe[d] a comprehensive national system for the registration of [sex] offenders." 42 U.S.C. 16901. Like the Wetterling Act before it, SORNA encourages the States to conform their sex offender registration pro grams to minimum national standards by providing for a reduction of certain federal funding for states that fail to do so. 42 U.S.C. 16912, 16925.
A sex offender must "register, and keep the registra tion current, in each jurisdiction where the offender re sides, where the offender is an employee, and where the offender is a student." 42 U.S.C. 16913(a). Initial regis tration must occur "before completing a sentence of im prisonment with respect to the offense giving rise to the registration requirement," or within three business days after sentencing for that offense. 42 U.S.C. 16913(b). Within three business days of any change of name, resi dence, employment, or student status, qualifying offend ers must appear in person in the relevant jurisdiction to provide the updated information. 42 U.S.C. 16913(c). SORNA specifies, among other things, the kinds of infor mation that the States must collect as part of registration (42 U.S.C. 16914), as well as community notification re quirements (42 U.S.C. 16918, 16921).1
Unlike its predecessor statute, SORNA covers juve niles who have been adjudicated delinquent for certain serious sex offenses. See 42 U.S.C. 16911(8). A juvenile is "convicted" of a sex offense under the statute, and thus required to register, if he 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 (as described in Section 2241 of title 18), or was an attempt or conspiracy to commit such an offense." Ibid. Section 2241, in turn, makes it a crime to engage in a sexual act (a) by using force or threatening death, serious bodily injury or kidnapping; (b) by rendering the victim unconscious or involuntarily drugging the victim; or (c) with a child under the age of 12. 18 U.S.C. 2241(a)-(c) (2006 & Supp. I 2007).
In explaining why it expanded coverage to include certain juvenile sex offenders, the House Judiciary Com mittee stated that juveniles "commit a significant number of sexual abuse crimes," and that "all too often, juvenile sex offenders have exploited current limitations," such as confidentiality provisions, "that permit them to escape notification requirements to commit sexual offenses." H.R. Rep. No. 218, 109th Cong., 1st Sess. Pt. 1, at 25 (2005) (2005 House Report); see ibid. (citing Federal Bureau of Investigation (FBI) crime data indicating that juveniles account for 34% of forcible rape arrests and commit 42% of all other sexual offenses). Thus,
[w]hile the Committee recognizes that States typi cally protect the identity of a juvenile who commits criminal acts, in the case of sexual offenses, the bal ance needs to change; no longer should the rights of the juvenile offender outweigh the rights of the com munity and victims to be free from additional sexual crimes. For victims, whether the offender is an adult or a juvenile has no bearing on the impact of that sex ual offense on the life of the victim. [SORNA] strikes the balance in favor of protecting victims, rather than protecting the identity of juvenile sex offenders.
Ibid.; see 152 Cong. Rec. S8027 (daily ed. July 20, 2006) (bill "appropriately requires the States to include the most egregious juvenile offenders, who do represent a threat to others, on their sex offender registries") (state ment of Sen. Leahy).
SORNA classifies sex offenders into three tiers based on the severity of their offenses. 42 U.S.C. 16911 (2)-(4). Those convicted of offenses comparable to aggravated sexual abuse are classified as Tier III sex offenders, and are required to register for life and to appear in person every three months to update and verify their registry information. See 42 U.S.C. 16911(4)(A)(I), 16915(a)(3), 16916(3). Because juvenile offenders are required to register under SORNA only if they were adjudicated delinquent for conduct that constitutes aggravated sex ual abuse, 42 U.S.C. 16911(8), they are classified under Tier III. A juvenile Tier III sex offender may have the registration period reduced to 25 years if he maintains a "clean record" free of felony and sex offense convictions. 42 U.S.C. 16915(b)(2)(B) and (3)(B).
Pursuant to 42 U.S.C. 16913(d), the Attorney General has "the authority to specify the applicability" of SORNA's registration requirements "to sex offenders convicted before the enactment of this chapter" and to "prescribe rules for the registration of any such sex of fenders." On February 28, 2007, the Attorney General issued an interim rule, effective on that date, specifying that "[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the of fense for which registration is required prior to the en actment of that Act." 28 C.F.R. 72.3. In the preamble to that rule, the Attorney General explained that "[c]onsid ered facially, SORNA requires all sex offenders who were convicted of sex offenses in its registration catego ries to register in relevant jurisdictions, with no excep tion for sex offenders whose convictions predate the en actment of SORNA." 72 Fed. Reg. at 8896. The interim rule, however, served the purpose of "confirming SORNA's applicability" to "sex offenders with predicate convictions predating SORNA." Ibid.2
On July 2, 2008, the Attorney General issued final guidelines to the States interpreting and implementing SORNA. See 73 Fed. Reg. 38,030-38,091. Under those guidelines, a jurisdiction is deemed to have substantially implemented SORNA's requirements if, with regard to juvenile offenders, it requires registration of those adjudicated delinquent of crimes comparable to the most severe forms of aggravated sexual abuse under 18 U.S.C. 2241 (2006 & Supp. I 2007)-i.e., engaging in a sexual act with another by "force or the threat of serious violence" or "by rendering unconscious or involuntarily drugging the victim." 73 Fed. Reg. at 38,050; see id. at 38,030 ("it is sufficient for substantial implementation * * * to require registration for (roughly speaking) juveniles at least age 14 who are adjudicated delinquent for offenses equivalent to rape or attempted rape, but not for those adjudicated delinquent for lesser sexual assaults or non- violent sexual conduct"); see also 42 U.S.C. 16925 (loss of federal funds occurs only for "a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter").
Failure to register is a criminal offense under SORNA. 18 U.S.C. 2250(a). A sex offender "by reason of a conviction under," inter alia, "Federal law," or who "travels in interstate or foreign commerce," and "know ingly fails to register or update a registration as re quired" under the Act is subject to a penalty of up to ten years of imprisonment. Ibid. Registration is also a man datory condition of probation for federal offenses. See 18 U.S.C. 3563(a)(8); 18 U.S.C. 5037(d)(3) ("The provi sions dealing with probation set forth in sections 3563 and 3564 are applicable to an order placing a juvenile on delinquent supervision."); see also 18 U.S.C. 3583(d) (mandatory condition of federal supervised release).
2. In 2000, when he was approximately 12, respon dent began sexually abusing a ten-year-old boy (W.J.H.) on the Fort Belknap Indian Reservation in Montana. The abuse continued for a period of two or three years and included acts of sodomy, oral sex, and masturbation. See Presentence Report 5-6 (PSR). Respondent admit ted that he forced W.J.H. to perform those sexual acts. Id. ¶¶ 18, 22. Because of the abuse, W.J.H. began to hurt himself by cutting his arms with razors and glass. Id. ¶ 16.
In 2005, respondent was charged in a juvenile infor mation in the United States District Court for the Dis trict of Montana with juvenile delinquency under the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031 et seq., for knowingly engaging in forcible sexual acts against W.J.H. that would have been a crime under 18 U.S.C. 2241(a)(1) and 1153(a) if committed by an adult. C.A. E.R. 44-45. Respondent thereafter pleaded "true" to a superseding information charging him with juvenile delinquency by knowingly engaging in sexual acts with W.J.H., who was under 12-years-old, that would have been a crime under 18 U.S.C. 2241(c) and 1153(a) if committed by an adult. Id. at 40-41. The government agreed to dismiss the original information. See 5/17/05 Plea Agreement para. 12.
On June 9, 2005, the district court accepted the plea agreement and the findings of fact in the PSR and ad judged respondent delinquent. C.A. E.R. 36-39. The court sentenced respondent to two years of official de tention, to be followed by juvenile delinquent supervision until his 21st birthday on May 2, 2008. Id. at 36-37. For the first six months of supervision, respondent was or dered to reside in a prerelease center and to abide by all conditions of the facility's residency. Id. at 37.
Respondent failed to comply with the requirements of the prerelease program and was terminated from the program. C.A. E.R. 12. On July 26, 2007, the district court revoked respondent's supervised release and sen tenced him to an additional six-month term of official detention to be followed by continued supervision until his 21st birthday. Id. at 24-26; see App., infra, 38a. The government argued that under SORNA (enacted the pre vious year but after respondent's adjudication), respon dent should be required to register as a sex offender "at least until the time that he hits age 21 and is released from supervised release." C.A. E.R. 20. Respondent objected, claiming that requiring him to register under SORNA would constitute an ex post facto violation. Id. at 21. As a "special condition" of his supervision, the court ordered respondent to "register in person as a sex offender with local/tribal/county law enforcement in the jurisdiction in which he resides, is employed, or is a stu dent, within three (3) business days of Juvenile's arrival in that jurisdiction," and to appear in person in the rele vant jurisdiction should he have a change of name, resi dence, employment, or student status. App., infra, 39a; see C.A. E.R. 27. The court also ordered that, "[i]f re quired to register as a sex offender under [SORNA]," respondent shall submit to warrantless searches, inter alia, of his person, property, vehicle and computer. App., infra, 39a; see C.A. E.R. 27-28.
3. On September 10, 2009, the court of appeals va cated in part and remanded, holding that SORNA's "ju venile registration provision may not be applied retroac tively to individuals adjudicated under the Federal Juve nile Delinquency Act." App., infra, 7a, 36a.3 While not ing that SORNA also requires qualifying state offenders to register, see 42 U.S.C. 16911(6), the court "d[id] not express any opinion" about the constitutionality of apply ing the registration requirements to state juvenile of fenders and "limit[ed] [its] discussion to individuals adju dicated delinquent in the federal system." App., infra, 8a n.4.
To decide whether the retroactive application of SORNA's juvenile registration and notification provi sions is punitive, and thus violative of the constitutional prohibition against ex post facto laws, the court applied the test in Smith, which asks whether a law intended to be a civil regulatory measure is "so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." App., infra, 11a (quoting Smith, 538 U.S. at 92) (internal quotation marks omitted). The court first assumed, without deciding, that SORNA is a civil regula tory scheme and was not "passed with a punitive pur pose." Id. at 11a-12a; see id. at 11a (Respondent "has properly not disputed that in enacting SORNA, Congress intended to establish a civil regulatory scheme rather than a criminal one."); id. at 12a (Respondent "conceded at oral argument that Congress's intent was not puni tive."). Looking to whether SORNA was nevertheless punitive in effect, the court concluded that this Court's decision in Smith, which rejected a similar ex post facto challenge to the Alaska Sex Offender Registration Act, did not control because it did not involve a juvenile sex offender. Id. at 14a-17a. Applying several of the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the court concluded that, when applied retroac tively to juvenile offenders, "the effect of SORNA's * * * registration provision is punitive." App., infra, 12a.
First, the court found that "by far the most compel ling" consideration is that the registration and notifica tion requirements impose an "affirmative disability or restraint" by making public "severely damaging" infor mation that, under the juvenile justice system, has largely been kept confidential. App., infra, 18a; see id. at 21a. The court reasoned that, unlike in Smith where the adult offender's conviction was already a matter of public record, the disclosure of a juvenile offense flows from "SORNA alone." Id. at 22a; see id. at 21a-22a (not ing that prior offenders will be subject to "public humilia tion and ignominy for the first time" and that their abil ity to obtain employment, housing, and education will be "seriously jeopardize[d]"). The court also noted that SORNA, unlike the Alaska statute in Smith, requires all offenders (adults and juveniles) to appear in person to verify their information, see 42 U.S.C. 16916, a burden which is neither "minor" nor "indirect." App., infra, 23a- 24a (suggesting that "[e]very three months, the former juvenile offender will be required to be absent from work, appear before public officials, and publicly reaffirm that they are guilty of misdeeds that were previously protected from disclosure").
Second, in examining the historical treatment of juve nile sex offender registration requirements, the court again emphasized the traditional confidentiality afforded to juvenile proceedings, in contrast to adult criminal pro ceedings where "[f]ull disclosure of the offense and the offender is an integral part of our punitive system." App., infra, 25a. In the end, however, the court con cluded that the "historical treatment" factor did not weigh in favor of holding the juvenile registration and notification provisions punitive. Id. at 27a.
Third, the court evaluated whether SORNA "pro motes the traditional aims of punishment" and, particu larly, the "aim of retribution." App., infra, 27a. Al though it had declined to hold that SORNA had a puni tive intent, the court nevertheless found, based on a floor statement by Senator Grassley, and a statement in SORNA's preamble (that SORNA was enacted, inter alia, "in response to the vicious attacks by violent preda tors against" a list of named victims, see 42 U.S.C. 16901), that "a retributive aim contributed to" SORNA's passage. App., infra, 28a-29a (suggesting that while SORNA's aim was "principally regulatory," it was "also in some measure punitive").
Finally, the court acknowledged that if a "statute is reasonably related to a non-punitive purpose," it is "not usually considered punitive." App., infra, 29a (cit ing Bell v. Wolfish, 441 U.S. 520, 538 (1978)). The court found, however, that SORNA's juvenile registration re quirements "appear[ed] excessive" in relation to its non punitive purpose of improving public safety, in light of studies indicating that juvenile sex offenders have rela tively low recidivism rates and, again, the confidentiality traditionally afforded juvenile offenders. Id. at 31a-33a. The court was particularly troubled by the imposition of registration requirements on law-abiding adults who had committed their offenses many years earlier. Id. at 33a. In the end, however, the court did "not give much weight either way to this factor." Id. at 34a (finding question of statute's excessiveness under the circumstances to be "close and difficult").
The court concluded that, taken together, the factors it considered provided "the clearest proof" that the retro active application of SORNA's juvenile registration and notification requirements is punitive. App., infra, 35a (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). The court thus vacated "the part of the judgment order that pertains to registration and reporting as a sex of fender, and h[e]ld that [respondent] may not constitu tionally be obligated to register as a sex offender under SORNA." Id. at 36a.4
REASONS FOR GRANTING THE PETITION
The Ninth Circuit held that SORNA cannot constitu tionally be applied to juvenile sex offenders adjudicated delinquent under the FJDA before the statute's enact ment. The court of appeals' partial invalidation of that Act of Congress is erroneous and undermines Congress's legitimate and compelling interest in protecting the safety of the community from sex offenders. It is also inconsistent with this Court's decision in Smith v. Doe, 538 U.S. 84 (2003), which rejected a similar ex post facto challenge to a state sex offender registration and notifi cation statute. This Court has never invalidated a state or federal law under the Ex Post Facto Clause on the ground that, despite the law's declared regulatory pur pose, its actual effects reveal a punitive character-and the court of appeals was wrong to do so here.
Although plenary consideration of the merits is war ranted, a threshold question of mootness should be re solved before this Court undertakes that review. The condition of supervision that respondent attacked on ap peal expired when he turned 21, before the court of ap peals issued its decision. Whether this case presents a live controversy turns on whether respondent could ben efit from a holding in his favor by the court of appeals, which itself turns on whether such a holding would affect his registration as a sex offender in the State of Montana. At present, the record in this case does not sufficiently illuminate that question. Accordingly, the Court may wish to grant the petition, vacate the judgment, and re mand for further proceedings on the issue of mootness.
A. The Ninth Circuit Erred In Declaring SORNA's Juvenile Registration And Notification Requirements Unconstitu tional Under The Ex Post Facto Clause
The Constitution prohibits both the States and the Federal Government from passing any "ex post facto Law." U.S. Const. Art. I, §§ 9-10. The Ex Post Facto Clause does not forbid the adoption of civil, regulatory measures with retroactive operation; it prohibits only passage of laws that retroactively impose criminal "pun ishment." See Smith, 538 U.S. at 92; Carmell v. Texas, 529 U.S. 513, 522 (2000); Kansas v. Hendricks, 521 U.S. 346, 361-362 (1997). When a regulatory scheme is de nominated civil by the legislature, a court may reject that manifest intent only upon "the clearest proof" that "the statutory scheme is so punitive either in purpose or ef fect as to negate [the legislature's] intention." Smith, 538 U.S. at 92 (internal quotation marks and citations omitted); see Hendricks, 521 U.S. at 361 (party bears a "heavy burden" when attempting to override legislature's nonpunitive intent); Flemming v. Nestor, 363 U.S. 603, 619 (1960) (evidence of punitive purpose must be "unmis takable").
1. In Smith, supra, this Court reversed a decision by the Ninth Circuit that had found Alaska's sex offender registration and notification law to violate the Ex Post Facto Clause as applied to a person whose conviction preceded enactment of the law. 538 U.S. at 106. The Court concluded that the Alaska legislature intended to create a civil, nonpunitive regime aimed at protecting public safety and that the law's effects did not negate that intent. Id. at 93-105. In holding that Alaska's stat ute was not "in effect" punitive, the Court explained that "[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment." Id. at 98-99. Thus, the Court noted, while widespread publicity of a criminal conviction "may cause adverse consequences for the convicted de fendant" and "subject the offender to public shame," that does not make a sex offender registration and internet notification scheme punitive. Id. at 99; see ibid. ("Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a col lateral consequence of a valid regulation."). The Court held that the respondents failed to show, "much less by the clearest proof," that any effects of the Alaska law negated the legislature's intent to create a civil regula tory scheme. Id. at 105.
SORNA is remarkably similar to the Alaska statute in purpose and in effect. As the court of appeals assumed (App., infra, 11a-12a), and as respondent conceded (ibid.), Congress enacted SORNA's registration and noti fication provisions as a civil regulatory scheme to protect public safety. Like the Alaska statute at issue in Smith, SORNA is not intended to punish sex offenders for past acts, but to protect the public against future harm. See 42 U.S.C. 16901 (Congress sought to "establish a com prehensive national system for the registration of [sex] offenders" in order "to protect the public from sex of fenders and offenders against children."); 72 Fed. Reg. at 8895 (SORNA was "generally designed to strengthen and increase the effectiveness of sex offender registra tion and notification for the protection of the public."). And "[t]here is no doubt that preventing danger to the community is a legitimate regulatory goal." United States v. Salerno, 481 U.S. 739, 747 (1987).
The court of appeals erred in finding the "clearest proof" that, despite their civil character and nonpunitive purpose, SORNA's registration and notification provi sions were nevertheless punitive "in effect," as applied retroactively to juvenile sex offenders adjudicated delin quent under the FJDA. App., infra, 12a, 35a. In so hold ing, the court of appeals distinguished this Court's deci sion in Smith on several grounds. None withstands scru tiny.
2. a. The court of appeals relied primarily on the purported distinction between adult sex offenders, whose convictions are already a matter of public record, and juvenile sex offenders, whose convictions would other wise remain confidential. In equating the disclosure of private, confidential information with punishment, and in concluding that such disclosure "imposes" an "affirma tive disability or restraint," App., infra, 19a, the court of appeals misread Smith and ignored this Court's other ex post facto precedents.5
As an initial matter, the Smith Court did not rely solely, or even primarily, on the public nature of the criminal justice system to conclude that sex offender reg istration and notification does not impose an affirmative disability or restraint. The Court instead relied on sev eral attributes of the Alaska statute that SORNA shares. As in Smith, SORNA's registration and notification re quirements "impose no physical restraint, and so do not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint." 538 U.S. at 100; see Hudson v. United States, 522 U.S. 93, 104 (1997) (asking whether sanctions resemble "the 'infa mous punishment' of imprisonment") (internal citation omitted). As in Smith, SORNA "does not restrain activi ties sex offenders may pursue but leaves them free to change jobs or residences." 538 U.S. at 100. And, as in Smith, sex offenders under SORNA are able "to move where they wish and to live and work as other citizens, with no supervision." Id. at 101.
The Court in Smith did observe that while the public dissemination of prior sex offense convictions may "have a lasting and painful impact on the convicted sex of fender," those "consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record." 538 U.S. at 101; see id. at 100 (noting that information about prior convictions were "already in the public domain"). But the general confidentiality of juvenile adjudications under the FJDA does not convert SORNA's policy of "dissemination of truthful information in furtherance of a legitimate governmental objective," id. at 98, 101, into an affirmative disability or restraint. SORNA may draw attention to juvenile criminal conduct that the law previ ously allowed a sex offender to conceal. But that change in legal policy does not implicate the Ex Post Facto Clause unless the disclosure of truthful facts counts as punishment, which no decision of this Court supports. See Hudson, 522 U.S. at 104 ("We have long recognized that 'revocation of a privilege voluntarily granted * * * is characteristically free of the punitive criminal ele ment.'") (quoting Helvering v. Mitchell, 303 U.S. 391, 399 & n.2 (1938)).
Publicity in criminal justice generally is not regarded as punitive-even if it produces social stigma or results in ostracism or hardship for defendants. The Constitu tion guarantees public trials explicitly in the Sixth Amendment, and it recognizes the right of press and pub lic access to criminal trials in the First Amendment. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (plurality opinion) (Richmond Newspapers). The purpose of a public trial is not punitive. Rather, a public trial serves many nonpunitive purposes: it promotes fair ness to the defendant by operating as a check on judges and prosecutors, Waller v. Georgia, 467 U.S. 39, 46 (1984); In re Oliver, 333 U.S. 257, 270 (1948); safeguards the integrity of the factfinding process, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982); maintains public confidence in the criminal justice system, ibid.; gives society an emotional outlet so as to minimize "vengeful 'self-help,'" Richmond Newspapers, 448 U.S. at 571; and encourages witnesses to come forward and discourages perjury, Waller, 467 U.S. at 46. See Smith, 538 U.S. at 99 ("Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused."). Although public disclosure of a juvenile sex offender's prior convictions serves different purposes under SORNA, the public tradition of criminal justice demon strates that, in our society, the dissemination of truthful information about criminal cases is not punishment.
Moreover, the "collateral consequences" that could flow from disclosure under SORNA, Smith, 538 U.S. at 99, pale in comparison to the sanctions this Court has previously found nonpunitive in light of a valid regula tory goal. The results of disclosure, for example, are far "less harsh than the sanctions of occupational debarment, which [this Court has] held to be nonpunitive." Id. at 100 (citing Hudson, 522 U.S. at 104) (debarment from bank ing industry not an "affirmative disability or restraint" for purposes of the Double Jeopardy Clause); see Flemming, 363 U.S. at 617 (retroactive termination of accrued government benefits not "affirmative disability or restraint"). Indeed, the Court has long-held that while deportation "may be burdensome and severe for the alien," it "is not a punishment." Mahler v. Eby, 264 U.S. 32, 39 (1924); see Harisiades v. Shaughnessy, 342 U.S. 580, 594-595 (1952). And while the indefinite civil commitment of mentally-ill sex offenders is clearly an affirmative restraint, the Court still found it nonpunitive for ex post facto purposes. Hendricks, 521 U.S. at 361- 363; see also, e.g., Hawker v. New York, 170 U.S. 189, 196 (1898) (retroactive revocation of medical license); De Veau v. Braisted, 363 U.S. 144, 160 (1960) (retroac tively barring felon from working as union official) (plu rality opinion).
b. The court of appeals also overstated the extent to which juvenile records and proceedings are kept confi dential-and, more importantly, the extent to which juve nile offenders can reasonably rely on such confidentiality as an inviolate and vested right.
The FJDA and similar statutes strike a balance be tween the rehabilitative goals associated with confidenti ality and the public's interest in learning about juvenile offenses. Generally, "the [juvenile] records shall be safe guarded from disclosure to unauthorized persons." 18 U.S.C. 5038(a); see 18 U.S.C. 5038(c) and (e); United States v. Three Juveniles, 61 F.3d 86, 92 (1st Cir. 1995) (noting tradition of confidentiality suggesting that clo sure of juvenile proceedings is the norm), cert. denied, 517 U.S. 1166 (1996). But that policy judgment is not absolute. The FJDA itself includes a non-exhaustive list of specific authorized "persons who have a right to obtain juvenile records upon request," Three Juveniles, 61 F.3d at 91, including other courts, law enforcement agencies, certain potential government employers, and victims of the juvenile's delinquency. See 18 U.S.C. 5038(a)(1)-(6); United States v. A.D., 28 F.3d 1353, 1359-1360 (3d Cir. 1994) (noting that Section 5038(a) "implicitly recognizes that there are situations other than those described in Paragraphs (a)(1) through (6) and its concluding Para graph in which access could be authorized"); see also 18 U.S.C. 5038(f) (requiring the release of juvenile records to the FBI if the juvenile was older than 13 and had been adjudicated delinquent for certain particularly violent or serious offenses, such as aggravated sexual abuse if a firearm was involved). Further, a district court may, in its discretion, provide broader access to juvenile records, and may open juvenile proceedings to the public if in a given case the public's interest in knowing about the of fense outweighs a juvenile's privacy interests. See United States v. Eric B., 86 F.3d 869, 879 (9th Cir. 1996); Three Juveniles, 61 F.3d at 90-91; A.D., 28 F.3d at 1359- 1362; cf. In re Gault, 387 U.S. 1, 24 (1967) ("Disclosure of court records is discretionary with the judge in most ju risdictions.").
This Court too has recognized that a juvenile of fender's interest in maintaining anonymity must some times yield to competing interests-including interests that arise after the juvenile has been adjudged delin quent. In Davis v. Alaska, 415 U.S. 308, 319-320 (1974), for example, the Court held that a State's policy interest in protecting the confidentiality of a juvenile offender's record must give way to a defendant's Sixth Amendment right to impeach a witness on the basis of his juvenile record. In Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-106 (1979), the Court held that a State could not punish a newspaper's truthful publication of a juvenile murder suspect's name that it had lawfully obtained. In both cases, the Court concluded that the constitutional rights outweighed the State's interest in maintaining the confidentiality of a juvenile offender's identity and of fense.6
SORNA reflects Congress's policy judgment that, in the case of serious juvenile sex offenders, the general confidentiality afforded juveniles under the FJDA should give way to public safety. Cf. 2005 House Report 25 ("While the Committee recognizes that States typically protect the identity of a juvenile who commits criminal acts, in the case of sexual offenses, the balance needs to change; no longer should the rights of the juvenile of fender outweigh the rights of the community and victims to be free from additional sexual crimes."). Especially given the many ways in which the juvenile's interest in confidentially has historically been qualified, the policy judgment that Congress made in SORNA to enhance the safety of the community through disclosure of a juvenile sex offense cannot be understood as having a punitive effect.
c. The court of appeals also concluded that SORNA's effect on juvenile offenders was excessive in relation to the statute's nonpunitive purpose, although it ultimately placed little weight on that factor. App., infra, 29a-34a. To distinguish Smith, in which this Court found the stat ute's rational connection to its nonpunitive purpose to be the "'most significant' factor," the court relied on the purportedly lower rate of recidivism among juvenile of fenders. That distinction fails for several reasons.
First, the studies referenced by the court (App., in fra, 32a) include all juvenile sex offenders, not just the most serious offenders actually covered by SORNA. Sec ond, this Court rejected a similar argument in Smith, explaining that "[t]he State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerous ness, does not make the statute a punishment under the Ex Post Facto Clause." 538 U.S. at 103-104; see De Veau, 363 U.S. at 158 ("Duly mindful as we are of the promising record of rehabilitation by ex-felons * * * it is not for this Court to substitute its judgment for that of [the legislature] regarding the social surgery required" to protect the public interest.). And, third, to the extent the court of appeals was most concerned about "adults who are forced to register solely because they committed an offense as a juvenile, but who have lived the rest of their adult lives without committing another such crime," App., infra, 33a, that concern is, again, for Congress to evaluate. The legislature is not required to wait for such an offender to commit a further crime as an adult, as the court suggests (ibid.), before acting to protect the public.
3. The court of appeals' further attempts to distin guish Smith based on purported differences between SORNA and the Alaska law are equally unavailing and conflict with the decisions of other courts of appeals.
First, the court observed that SORNA, unlike the Alaska statute, requires in-person verification. App., infra, 23a-24a. As an initial matter, and contrary to the court of appeals' assertion (ibid.), SORNA does not "re quire" former offenders to be "absent from work, ap pear before public officials, and publicly reaffirm that they are guilty of misdeeds." It simply requires sex of fenders to "appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry." 42 U.S.C. 16916; see 73 Fed. Reg. at 38,067 (noting that jurisdictions may implement require ment in multiple ways and in their discretion, including arranging visits at the offender's home or other agreed- upon location). More importantly, such a requirement is reasonably related to advancing the government's public safety purposes by, for example, verifying the continued presence and identity of registered offenders and con firming the reliability of registration information. Ibid.
Second, the court of appeals suggested that SORNA is retributive (despite having a nonpunitive purpose) based on a statement from one Senator and a clause in the statute's preamble referring to named victims. A single floor statement from one Senator suggesting that child sex offenders are "heinous" and deserving of pun ishment, App., infra, 29a, does not demonstrate that SORNA was enacted with a retributive purpose. See Bae v. Shalala, 44 F.3d 489, 494 (7th Cir. 1995) ("[R]eliance on statements made by politicians in their efforts to per suade colleagues to enact a law is a wholly unreliable method for determining the nature of a sanction."); Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 166 (1993); Zuber v. Allen, 396 U.S. 168, 186 (1969).7 And a clause in SORNA's preamble, noting "vicious attacks by violent predators" against named victims, see 42 U.S.C. 16901, also does not show that SORNA was driven by a retributive purpose. App., infra, 28a. As this Court rec ognized in Smith, the Alaska sex offender registration statute, like many of its counterparts in other states, was enacted in response to the sexual assault and murder of seven-year-old Megan Kanka by a neighbor who, unbe knownst to her family, had previously been convicted of sex offenses against children. See 538 U.S. at 89-90. A regulatory measure informed by past experience, and designed to protect other children from sex crimes, is not meant to punish anyone.
Both purported distinctions also apply equally to adult sex offenders required to register under SORNA. Yet, every court of appeals that has considered an ex post facto challenge to SORNA's registration and notifi cation requirements, with the exception of the court be low, has rejected such distinctions and concluded that the effect of SORNA, like that of the Alaska law at issue in Smith, is not so punitive as to overcome its clearly regu latory purpose. See United States v. Young, 585 F.3d 199, 204-206 (5th Cir. 2009); United States v. Hinckley, 550 F.3d 926, 936-938 (10th Cir. 2008); United States v. May, 535 F.3d 912, 919 (8th Cir. 2008); United States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2008).8
B. The Court Of Appeals' Decision Warrants This Court's Review Because It Partially Invalidates An Act Of Con gress
The decision of the court of appeals partially invali dates an Act of Congress and that alone warrants this Court's review. And, despite the court's claims, the ef fect of that invalidation is not limited. The court pur ported to confine its holding to juvenile offenders adjudi cated delinquent in the federal system under the FJDA (App., infra, 8a n.4), but its faulty reasoning may well have a broader impact. SORNA's registration and notifi cation requirements apply not just to federal juvenile offenses but to state juvenile offenses as well. And while a number of States required some form of registration and community notification for juvenile sex offenders before passage of SORNA, others either exempted juve niles from such requirements, expressed no clear judg ment on the matter, or granted the judiciary discretion to decide whether a juvenile must register. The court of appeals' decision casts a cloud over the constitutionality of SORNA's juvenile registration provisions based on pre-SORNA adjudications in many of those jurisdictions as well. The decision thus seriously undermines Con gress's specific intent to expand registration and notifica tion to juvenile offenders who "[a]ll too often, * * * have exploited current limitations," such as confidential ity provisions, "that permit them to escape notification requirements to commit sexual offenses." 2005 House Report 25.
Review is also warranted because the decision below conflicts with the reasoning in this Court's decision in Smith, which reversed a similar decision from the Ninth Circuit. The Court has never invalidated a state or fed eral law under the Ex Post Facto Clause on the ground that, despite its declared regulatory purpose, its actual effects reveal a punitive character-and the court of ap peals was wrong to do so here.
C. The Court Should Consider Remanding The Case For Further Proceedings On The Question Of Mootness
Consistent with Article III of the Constitution, "[t]o qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of re view." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citation omitted). "[T]hroughout the litigation, the plaintiff 'must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). The completion of a criminal defendant's sentence will not normally moot an appeal challenging his conviction because criminal con victions are presumed to have "continuing collateral con sequences" (or, as the Court has said, the Court has "accept[ed] the remote possibility of collateral conse quences as adequate to satisfy Article III"). Spencer, 523 U.S. at 8, 10, 12; see Sibron v. New York, 392 U.S. 40, 57-58 (1968).
That same presumption does not apply when a defen dant challenges only his sentence. When a criminal de fendant challenges his sentence, and that sentence subse quently expires, the defendant bears the burden of dem onstrating that the action continues to raise "collateral consequences adequate to meet Article III's injury-in- fact requirement." Spencer, 523 U.S. at 14 (applying that principle to challenges to revocation of parole after the revocation sentence was served). Further, the defendant must show that the ongoing consequences are "traceable" to the challenged action and that they are "likely to be redressed by a favorable judicial decision." Id. at 7 (cita tion omitted).
Respondent's appeal did not challenge the underlying judgment adjudicating him delinquent for a crime that, if committed by an adult, would have been aggravated sexual abuse. Rather, in the Ninth Circuit, he challenged only the conditions of his juvenile supervision requiring him to register as a sex offender, and he asked the court of appeals to "reverse the portion of his sentence requir ing Sex Offender Registration and remand with instruc tions that the district court amend the Judgment striking Sex Offender Registration as a condition of juvenile su pervision." Resp. C.A. Br. 25. But respondent was no longer subject to supervision by the district court by the time the Ninth Circuit issued its decision. As a conse quence, the case was moot in the Ninth Circuit unless respondent could show that a favorable court decision would serve to redress collateral consequences of the supervision conditions. By the time of the court of ap peals' decision, respondent had become registered as a sex offender in Montana, where he continues to be regis tered today. The question, then, is whether a favorable decision by the court of appeals would have made it "likely" (Spencer, 523 U.S. at 7) that he could remove his name and identifying information from the Montana sex offender registry.
That question cannot readily be answered on the cur rent record. Montana is not a party to the federal juve nile proceeding. Montana therefore would not be di rectly bound by any appellate order requiring the district court to eliminate the sex offender registration condi tions from its now-expired sentence. Nor is Montana bound to accept the Ninth Circuit's views on the scope of the Ex Post Facto Clause. "The Supremacy Clause de mands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation." Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring); see Arizonans for Official English, 520 U.S. at 58 n.11. Thus, a state "trial court is bound by th[e] [Supreme] Court's * * * interpretation of federal law, but if it follows [a federal court of appeals'] interpre tation of federal law, it does so only because it chooses to and not because it must." Lockhart, 506 U.S. at 376 (Thomas, J., concurring).9
In addition, Montana's own sex offender registration provisions would appear to figure prominently in whether the Ninth Circuit's decision to vacate the super vision conditions would redress respondent's continued registration as a sex offender. That issue would turn on matters of state law and practice, such as whether re spondent was required to register in the State of Mon tana independent of the federal juvenile court judgment and whether, if the district court's order were vacated, the State would take steps to remove him from its regis try. Only if it is "likely" (Spencer, 523 U.S. at 7) that the State would take such action as a result of a favorable appellate decision by the Ninth Circuit would respondent be relieved of the collateral consequences of the district court order.
Neither party raised the issue of mootness for the Ninth Circuit's consideration, and the court of appeals did not address the question sua sponte. Thus, respon dent has had no opportunity to develop a record demon strating that collateral consequences exist and a favor able decision "likely" would redress them-and no court has considered that issue. The government's research into Montana law and practice has not, as yet, yielded a conclusive answer.10 In other cases in which facts came to light that raised a question of mootness that this Court could not readily resolve, the Court has granted certio rari, vacated the judgment, and remanded for consider ation of mootness. See, e.g., United States v. US West, Inc. and United States v. Pacific Telesis Group, 516 U.S. 1155 (1996); Vitek v. Jones, 436 U.S. 407, 410 (1978) (per curiam); see also Eugene Gressman et al., Supreme Court Practice § 5.13, at 357 (9th ed. 2007) (collecting cases illustrating that "when there is doubt about the continuing nature of a controversy, the Court may re mand the case to the lower court for consideration of the possibility of mootness").
That course may be warranted here, absent further clarification of the facts and Montana law. If this case is moot, the Court should not adjudicate the constitutional question presented, and the United States should not be bound in the Ninth Circuit by a ruling that never should have been issued invalidating an Act of Congress. Rather, in the event of mootness, the Court should vacate the judgment of the court of appeals, "clear[ing] the path" for relitigation of the important issues presented here and "eliminat[ing] a judgment, review of which was prevented through happenstance." United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950); cf. Claiborne v. United States, 551 U.S. 87 (2007) (entering a Munsing wear order in a criminal case and vacating the judgment below because the petitioner died after oral argument but before decision).
The petition for a writ of certiorari should be granted. The Court may wish to vacate the judgment below and remand the case for consideration of mootness.
LANNY A. BREUER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MELISSA ARBUS SHERRY
Assistant to the Solicitor
1 States may adopt sex-offender-registration requirements that ex ceed the minimum standards specified by SORNA. See Office of the Attorney Gen., U.S. Dep't of Justice, The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,032-38,035, 38,044, 38,046 (2008).
2 The courts of appeals are divided on whether SORNA's registration requirements apply of the statute's own force to persons with sex- offense convictions that preceded SORNA's enactment or whether Con gress intended for the Attorney General to decide that question. Com pare United States v. Hinckley, 550 F.3d 926, 929-935 (10th Cir. 2008) (former view), cert. denied, 129 S. Ct. 2383 (2009), and United States v. May, 535 F.3d 912, 916-919 (8th Cir. 2008) (same), cert. denied, 129 S. Ct. 2431 (2009), with United States v. Cain, 583 F.3d 408, 414-419 (6th Cir. 2009), petition for reh'g pending, No. 07-4535 (filed Dec. 7, 2009) (latter view), United States v. Hatcher, 560 F.3d 222, 226-229 (4th Cir. 2009) (same), United States v. Dixon, 551 F.3d 578, 582, 585 (7th Cir. 2008), cert. granted, 130 S. Ct. 47 (2009) (same), and United States v. Madera, 528 F.3d 852, 857-859 (11th Cir. 2008) (same). Because the district court order requiring respondent to register was issued after the interim rule became effective, see pp. 9-10, infra, that conflict is not implicated here.
A panel of the Sixth Circuit has held that the interim rule declaring SORNA retroactive failed to comply with the Administrative Procedure Act's (APA), notice and comment requirements, 5 U.S.C. 553, and that the Attorney General did not have good cause for failing to comply. See Cain, 583 F.3d at 419-424. That decision conflicts with at least one other court of appeals decision, see United States v. Gould, 568 F.3d 459, 469 (4th Cir. 2009), petition for cert. pending, No. 09-6742 (filed Sept. 25, 2009), and the government has filed for rehearing en banc in Cain, No. 07-4535 (filed Dec. 7, 2009). The validity of the interim rule under the APA was not raised below and was not discussed or decided by the court of appeals. It is not at issue here. See Lopez v. Davis, 531 U.S. 230, 244 n.6 (2001).
3 The district court's imposition of the registration condition accords with SORNA's requirement that a mandatory condition of supervision be, "for a person required to register under [SORNA], that the person comply with the requirements of that Act." 18 U.S.C. 3563(a)(8) (made applicable to juvenile proceedings by 18 U.S.C. 5037(d)(3)). The court of appeals approached the case as raising a direct ex post facto challenge to SORNA's registration and notification provisions and decided the case on that basis.
4 Respondent's juvenile supervision expired upon his 21st birthday (May 2, 2008), after oral argument in the court of appeals and before the court's issuance of its opinion on September 10, 2009. Before he turned 21 and while under district court supervision, however, respon dent did register as a sex offender with the State of Montana. And, as of the filing of this petition for a writ of certiorari, respondent's registration information is still available online and was last updated on December 15, 2009.
5 The court of appeals also relied on that distinction in examining whether the registration requirement for juveniles had historically been regarded as punishment, but ultimately concluded that this factor did not "weigh in favor of holding the juvenile registration and notification provisions to be punitive in nature." App., infra, 27a.
6 A jurisdiction's policy judgment that confidentiality should be afforded to juvenile records and proceedings is just that; juvenile offenders have no constitutional right to nondisclosure. See Eric B., 86 F.3d at 879 (juvenile has no constitutional right to nondisclosure of his criminal records).
7 Further, the statement quoted by the court generally refers not to SORNA's registration requirements, but to a separate set of provisions the Senator had sponsored that increased the penalties for certain federal sex offenses. See 152 Cong. Rec. at S8021.
8 A different ex post facto question is presented in Carr v. United States, 129 S. Ct. 47 (2009): whether SORNA's criminal penalty in 18 U.S.C. 2250(a) can be applied to sex offenders who traveled interstate before SORNA's enactment. That question is not implicated in this case, which only involves the retroactive application of SORNA's registration and notification requirements to juvenile offenders. Smith, 538 U.S. at 101-102 ("A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the * * * original offense" that made the registration requirements applicable to him.).
9 Montana would, of course, be bound if this Court were to hold that the registration of respondent under SORNA violates the Ex Post Facto Clause. But whether the case became moot in the court below -that is, whether respondent's collateral injury (registration as a sex offender in Montana) was redressable by a favorable appellate decision -should be judged by the circumstances before the court of appeals once respondent completed his juvenile sentence. Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.4 (1992) (evaluation of redressability for purposes of Article III standing must take place when suit is commenced, not when it reaches this Court).
10 Before May 2007, it appears that Montana law generally did not require
juvenile sex offenders to register. See Mont. Code Ann. § 46-23-502(7)
(West 2005) (defining a sexual offender as "a person who has been convicted
of a sexual * * * offense"); State v. Hastings, 171 P.3d 726, 728 (Mont.
2007) (explaining that the state sex offender statutes "require a 'conviction'
before [state] registration requirements may be imposed" and a "youth
court adjudication did not constitute a 'conviction' as contemplated in
§ 46-23-502(7), MCA"). Registration, however, was required if
a youth court so ordered. See Mont. Code Ann. § 41-5-1513(1)(c) (West
2005) ("the youth court may * * * require a youth found to be a delinquent
youth, as the result of the commission of an offense that would be a sexual
offense * * * as defined in 46-23-502, if committed by an adult, to register
as a sexual * * * offender"); Hastings, 171 P.3d at 729 (youth court
has "discre tion to impose a [sex offender] registration requirement
in an appropri ate case"); State v. Villanueva, 118 P.3d 179, 181 (Mont.
2005) (same). Registration was also required if the juvenile had been required
to register in another jurisdiction. See Mont. Code Ann. § 46-23-502(6)(b)
(West 2005) (defining "sexual offense" and including "any
violation of a law of another state or the federal government that is reasonably
equivalent to a [listed violation] or for which the offender was required
to register as a sex offender after conviction"); Villanueva, 118 P.3d
at 181-182 (affirming that juvenile required to register in Washington for
sexual offense was also required to register in Montana). State law now
imposes registration requirements on persons "found to have commit
ted or been adjudicated for" a qualifying sexual offense "in youth
court." Mont. Code Ann. § 46-23-502(10) (2009). The May 11, 2007,
amendment applies retroactively to "sexual offenders who are sen tenced
or who are in the custody or under the supervision of the department of
corrections on or after July 1, 1989," 2007 Mont. Laws Ch. 483; Montana
authorities have represented to us that the State has not relied on the
2007 retroactivity clause to apply the duty to register retroactively to
juvenile adjudications. These provisions, taken collectively, may afford
respondent grounds to be removed from the registry on the basis of a new
court order vacating the conditions on supervision.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D.C. No. CR-05-00054-SEH
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
JUVENILE MALE, DEFENDANT-APPELLANT
Filed: Sept. 10, 2009
Amended: Jan. 5, 2010
ORDER AND AMENDED OPINION
Before: STEPHEN REINHARDT, A. WALLACE TASHI MA, and M. MARGARET MCKEOWN, Circuit Judges.
The clerk is directed to hold the mandate pending further order of the court.
The opinion filed September 10, 2009, slip op. 13109, and appearing at 581 F.3d 977 (9th Cir. 2009), is hereby amended as follows:
1. Slip op. at 13124, line 21: after <offenders.> and before <We are>, insert the following footnote:
Our reasons for distinguishing Doe apply as well to Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997)
and Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004). Russell and Hatton rejected Ex Post Facto chal lenges to sex offender registration requirements for those convicted of sex offenses as adults. Neither discussed whether the registration requirements would be punitive if imposed on those adjudicated delinquent in the juvenile justice system, nor did they address the contrasting approaches to pri vacy/publicity in the juvenile and adult systems. In fact, the Russell court specifically recognized that "[t]he information collected and disseminated by the Washington statute is already fully available to the public . . . ." Russell, 124 F.3d at 1094 (rejecting offenders' contention that the registration and notifi cation requirements violated their right to privacy). 2. Slip op. at 13140-41, replace the text of footnote 16 with the following:
United States v. George, 579 F.3d 962 (9th Cir. 2009), addressed an ex post facto challenge to SORNA's criminal provisions from an adult defendant who was convicted of a sex offense prior to SORNA and then convicted under SORNA for failure to register. Smith v. Doe had already established that under SORNA adults may be constitutionally required to register as sex offenders based on pre-SORNA con victions, 538 U.S. 84 (2003), and George did not con sider the separate issue we decide here, whether ju venile offenders may be constitutionally required to register based on pre-SORNA adjudications. In any event, George was lawfully required to register as a sex offender as a condition of his pre-SORNA plea agreement. George argued that his failure to regis ter was a one-time event that took place before SORNA took effect, and therefore his conviction for violating SORNA amounted to an unconstitu tional retrospective application of a criminal law. We held otherwise, stating, inter alia, that George, whose initial requirement to register was lawful, vio lated the law not only when he failed to comply but as long thereafter as he continued to fail to do so. In short, we held that when there is a lawful obliga tion to register, that obligation is a continuing one. George's offense of not registering continued from SORNA's passage on, and SORNA's imposition of criminal liability for the post-SORNA conduct raised no ex post facto issue. George does not affect our decision here. Because Juvenile Male (S.E.) could not lawfully be required to register on the basis of his pre-SORNA conduct, and that was the only im proper sexual conduct with which he was charged, he did not, under our decision here, violate any lawful requirement of SORNA. As there was no obligation on S.E.'s part to register, there was, of course, no continuing obligation to do so.
REINHARDT, Circuit Judge:
As a society, we generally refuse to punish our na tion's youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person's permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delin quents and placed in juvenile detention centers. Histori cally, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the "dissemination of truthful information" and "[t]ransparency" that characterizes the punitive system in which we try adults. Compare 18 U.S.C. § 5038(e) ("[N]either the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.") with Smith v. Doe, 538 U.S. 84, 99 (2003) ("[O]ur criminal law tradition insists on public indict ment, public trial, and public imposition of sentence.").
In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act ("SORNA" or "the Act") and applied its registration and reporting require ments not only to adults but also to juveniles who com mit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising au thority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents. 28 C.F.R. § 72.3 (2007).
The retroactive application of SORNA's juvenile reg istration provision affects people of all ages-not only juveniles. As we are still close in time to SORNA's pas sage, some, like S.E., were adjudicated delinquent rela tively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudi cated delinquent years or even decades before SORNA's enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA's retroactive application to juvenile offenders is felt mainly by adults who commit ted offenses long ago as teenagers-many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA's enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numer ous individuals for the rest of their adult lives.1
We must decide as a matter of first impression-in our court and in any other circuit court-whether the retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile of fenders and from the requirement that such former of fenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidenti ality that has historically attached to juvenile proceed ings, we conclude that the retroactive application of SORNA's provisions to former juvenile offenders is pu nitive and, therefore, unconstitutional.2
At the age of thirteen, defendant-appellant S.E. en gaged in non-consensual sexual acts with a ten-year-old child of the same sex. The sexual activity continued un til S.E. was fifteen years old and the younger child was twelve. S.E. pled "true" to the commission of acts that, had they been committed by an adult, would constitute aggravated sexual abuse under 18 U.S.C. § 1153 and § 2241(c), because the younger child was, during the period of the charges, under twelve. As a result, S.E. was adjudicated delinquent under 18 U.S.C. § 5031, et seq.3
In 2005, a year before SORNA was adopted, the dis trict court sentenced S.E. to two years of detention at a juvenile facility followed by supervised release until his twenty-first birthday. He was not at this point, of course, ordered to register as a sex offender. S.E. com pleted his two-year confinement and moved to a pre release center where, pursuant to the terms of his sen tence, he was to reside for six months. When S.E. failed to engage in a required job search, center officials deemed him a program failure and requested his re moval. In 2007, a year after the enactment of SORNA, the district court revoked S.E.'s supervised release due to his failure to reside at the center as required by his conditions of supervision, and ordered an additional six months of confinement and continued supervision until S.E.'s twenty-first birthday. The judge also imposed a "special condition" mandating that S.E. register as a sex offender. S.E. objected to the imposition of the registra tion requirement and timely filed a notice of appeal. The government argues that the special condition is valid because S.E. is required to register by SORNA. S.E. responds that the Ex Post Facto Clause of the United States Constitution bars the retroactive application of the registration provision of SORNA to persons who prior to its passage were designated as juvenile offend ers.
Reviewing all questions at issue here de novo, see Beeman v. TDI Managed Care Services, 449 F.3d 1035, 1038 (9th Cir. 2006) (questions of statutory interpreta tion); Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir. 2003) (violations of the Ex Post Facto Clause), we hold that SORNA's juvenile registration provision may not be applied retroactively to individuals adjudicate delin quent under the Federal Juvenile Delinquency Act, and we reverse the directive that S.E. must register under the Act.4
A. Federal Juvenile Delinquency Act ("FJDA")
The Federal Juvenile Delinquency Act ("FJDA") sets forth the procedures governing federal juvenile adjudications. 18 U.S.C. § 5031 et seq. "The purpose of the FJDA is to 'remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and reha bilitation.'" United States v. Doe, 94 F.3d 532, 536 (9th Cir. 1996) (internal citation omitted); see also In re Sealed Case (Juvenile Transfer), 893 F.2d 363, 367 (D.C. Cir. 1990) (noting that the FJDA's "underlying purpose is to rehabilitate, not to punish, so as 'to assist youths in becoming productive members of our society'") (quot ing S. Rep. No. 1011, 93d Cong., 2d Sess. 22 U.S. Code Cong. & Admin. News 1974 p. 1267 (1974)). The FJDA, accordingly, provides that information about juve- nile delinquency proceedings "shall be safeguarded from disclosure to unauthorized persons." 18 U.S.C. § 5038(a). This ensures that "a juvenile delinquent for whom there is some hope of rehabilitation [does] not receive the stigma of a criminal record that would attach to him throughout his life." United States v. Three Ju veniles, 61 F.3d 86, 88 (1st Cir. 1995) (quoting S. Rep. No. 1989, 75th Cong., 3d Sess. 1 (1938)). "The confiden tiality provisions of the Act are therefore quite essential to the Act's statutory scheme and overarching rehabili tative purpose." Three Juveniles, 61 F.3d at 88. Such provisions include, among other things, the mandate that "neither the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding." 18 U.S.C. § 5038. Although the FJDA specifies limited circumstances in which records about juvenile delinquency proceedings may be released to certain officials for law enforcement, judicial, or treat ment purposes, it mandates that information from delin quency proceedings "may not be released when the re quest for information is related to an application for em ployment . . . or any civil right or privilege." Id.
B. Sex Offender Registration and Notification Act ("SORNA")
On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act, 42 U.S.C. § 16901 et seq., which includes the Sex Offender Registration and Notification Act ("SORNA"). SORNA was enacted "[i]n order to protect the public from sex offenders and of fenders against children, and in response to the vicious attacks by violent predators" against seventeen named victims of sex crimes. 42 U.S.C. § 16901. SORNA "es tablishes a comprehensive national system for the regis tration of [sex] offenders," id., and requires anyone con victed of specified crimes, including aggravated sexual abuse, to register with the national sex offender regis try. 42 U.S.C. § 16911(4)(A)(i). SORNA defines convic tions to include juvenile delinquency adjudications of aggravated sexual abuse if the offender is fourteen years of age or older at the time of the offense. 42 U.S.C. § 16911(8).
Congress delegated to the Attorney General the deci sion whether SORNA should apply retroactively to sex offenders who were convicted before the statute's effec tive date. 42 U.S.C. § 16913(d). Congress gave the At torney General no instruction regarding whether SORNA should apply retroactively or not, and certainly gave no indication to the Attorney General that if ap plied retroactively to adults, it should be so applied to juveniles as well. Exercising the delegated authority, the Attorney General promulgated a regulation that renders SORNA applicable to "all sex offenders, includ ing sex offenders convicted of the offense for which reg istration is required prior to the enactment of that Act." 28 C.F.R. § 72.3 (2007). The regulation went into effect immediately as an interim rule, without providing for a notice and comment period in advance of SORNA's ret roactive application. Office of the Attorney General, Applicability of the Sex Offender Registration and Noti fication Act, 72 Fed. Reg. 8894-01, 8896-97 (Feb. 28, 2007). The regulation contains no exception for persons adjudged juvenile delinquents, and it does not appear that the Attorney General considered any such excep tion. Indeed, there is no indication that the Attorney General, in determining the scope of SORNA's retroac tivity, gave any consideration at all to the special cir cumstances of juveniles who had been adjudicated delin quent under a different-and largely confidential-judi cial system, or to the societal costs versus benefits of applying SORNA's juvenile registration requirement retroactively. See generally 72 Fed. Reg. 8894-01.
A statute or regulation that imposes retroactive pun ishment violates the constitutional prohibition on the passage of ex post facto laws. U.S. Const. Art. I § 9, cl. 3; Doe, 538 U.S. at 92. The application of SORNA, en acted in 2006, to S.E., who was found delinquent in 2005, is clearly retroactive. See 28 C.F.R. § 72.3 (applying SORNA "to all sex offenders, including sex offenders convicted of the offense for which registration is re quired prior to the enactment of that Act").
The question we must answer then is whether the application of SORNA's juvenile registration provision is punitive.
If the intention of the legislature was to impose pun ishment, that ends the inquiry. If, however, the in tention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [Congress's] intention to deem it 'civil.'
Doe, 538 U.S. at 92 (internal citations and quotation marks omitted). S.E. has properly not disputed that in enacting SORNA, Congress intended to establish a civil regulatory scheme rather than a criminal one. We must then inquire whether SORNA's juvenile registration provision is nevertheless punitive because (a) its pur pose is to punish or (b) its effect is clearly shown to be punitive. Doe, 538 U.S. at 92-93. Whether SORNA was passed with a punitive purpose, or whether the Attorney General applied SORNA retroactively in order to punish past conduct, has not been answered in our circuit.5 Be cause, however, we need not answer that question and because S.E. conceded at oral argument that Congress's intent was not punitive, despite arguing to the contrary in his briefs, we will assume for the purposes of this case, without deciding the issue, that the answer is no.
Congressional intent, and even the Attorney Gen eral's, notwithstanding, we will find an ex post facto vio lation if the effect of SORNA's juvenile registration pro vision is punitive. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). The Supreme Court has explained that, "[b]ecause we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denomi nated a civil remedy into a criminal penalty . . . . " Doe, 538 U.S. at 92 (citation and quotation marks omit ted). The requirement of "clearest proof" is not, how ever, a requirement that the petitioner present evidence in the record regarding the effects of the statute as ap plied to him. "Instead, courts must evaluate the ques tion [whether a statute is punitive] by reference to a variety of factors considered in relation to the statute on its face." Seling v. Young, 531 U.S. 250, 262 (2001) (quotation and quotation marks omitted) (emphasis added).
Indeed, when an individual challenges a new law, such as SORNA was at the time this case began, it would appear to be impossible for him to develop a record which contains the "clearest proof" of the punitive ef fects that the law will have upon him or indeed upon oth ers. Certainly, we would not require S.E. to suffer and then document the ill effects of SORNA's juvenile regis tration provision before permitting a challenge to its retroactive application. We interpret the "clearest proof" requirement in the only way that is sensible: that the terms of the statute, the legal obligations it imposes, the practical and predictable consequences of those obli gations, our societal experience in general, and the ap plication of our own reason and logic, establish conclu sively that the statute has a punitive effect.
In considering whether the statute has a punitive effect, we refer to the factors first set forth in Kennedy v. Mendoza-Martinez:
[w]hether the sanction involves an affirmative dis ability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of a scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may ratio nally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (internal citations omitted). These factors, while helpful, are "neither exhaustive nor dispositive, but are useful guideposts." Doe, 538 U.S. at 97 (internal cita tions and quotation marks omitted). Here, as in Doe,
[t]he factors most relevant to our analysis are wheth er, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or re straint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.
Before applying this legal framework, we consider the extent to which the Supreme Court's decision in Doe controls the outcome of the present case. The Supreme Court in Doe applied the Mendoza-Martinez factors and concluded that the retroactive application of Alaska's Sex Offender Registration Act ("the Alaska statute") to adult sex offenders did not have a punitive effect, and therefore did not violate the Ex Post Facto Clause. It would be tempting to conclude, without looking carefully at the special circumstances of former juvenile offend ers, that in light of Doe, sex offender registration by its nature does not constitute punishment. Doe does not, however, mandate that result, and the case before us presents substantially different facts and issues that sig nificantly affect our analysis, and which govern our un derstanding of how the Constitution must be applied. For both similar and different reasons, Doe is not dis positive of the reporting provisions.
Historically, our country has had two separate sys tems of justice, one for adults and the other for juve niles. The criminal justice system that applies to adults is fundamentally a public one. We view its public nature as an essential protection for the rights of both the de fendant and society at large. As Doe explains, "[t]rans parency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and pro tecting the rights of the accused." Id. at 99. Our re quirement of "public indictment, public trial, and public imposition of sentence," id. (emphasis added), is central to our vision of a punitive system that is fair and just.
Juvenile adjudications, by contrast, by and large take place outside the public domain. We have historically made the decision to shield juvenile offenders from the public eye-both from the protections that public scru tiny provides against government oppression, and from the burdens that public scrutiny imposes through the stigmatization of those convicted of crimes. As Chief Justice, then Justice, Rehnquist explained, "[i]t is a hall mark of our juvenile justice system in the United States that virtually from its inception at the end of the [nine teenth] century its proceedings have been conducted outside of the public's full gaze and the youths brought before our juvenile courts have been shielded from pub licity." Smith v. Daily Mail Pub. Co., 443 U.S. 97, 107 (1979) (Rehnquist, J., concurring). Juveniles are denied certain procedural rights afforded to adult criminal de fendants, including a public trial by jury,7 but they are, in turn, beneficiaries of an adjudicatory system de signed, though not always successfully, to rehabilitate rather than punish-a system ill-suited to public expo sure. There are some exceptions to confidentiality in ju venile proceedings, which we will describe further be low. However, our juvenile justice system from its ori gins was established in order to make the child "feel that he is the object of [the state's] care and solicitude," and that he would "be treated and rehabilitated" through "clinical" procedures "rather than punitive" ones. Gault, 387 U.S. at 15-16. The FJDA, which governs ju venile proceedings, is for that reason designed "to 're move juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation.'" United States v. Doe, 94 F.3d at 536 (quoting United States v. Brian N., 900 F.2d 218, 220 (10th Cir. 1990) (citations omitted)). Our punitive system is public; our rehabilita tive system for juveniles, quite deliberately, is not.
In light of these two different systems of justice- one public and punitive, the other largely confidential and rehabilitative-the impact of sex offender registra tion and reporting upon former juvenile offenders and upon convicted adults differs in ways that we cannot ignore. According Doe its full precedential weight, we are nonetheless compelled to conclude here that the ef fect of the retroactive application of SORNA's juvenile registration and reporting requirements is different both in nature and degree than the retroactive applica tion of Alaska's statute to adult offenders.8 We are also compelled to conclude, for what it's worth, that it would be a breach of faith to those young persons, some of whom are now elderly, who voluntarily accepted status as a juvenile delinquent believing that their juvenile offense would not later be made known to the world at large.
A. Affirmative disability or restraint
We begin by considering whether the retroactive application of SORNA's juvenile registration provision "imposes an affirmative disability or restraint." Doe, 538 U.S. at 97. We look to "how the effects of [SORNA's juvenile registration provision] are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive." Id. at 99-100. Because we conclude that the retroactive application of SORNA's juvenile registration provision imposes a dis ability that is neither "minor" nor "indirect," but rather severely damaging to former juvenile offenders' eco nomic, social, psychological, and physical well-being, this factor strongly supports a determination that the stat ute's effect is punitive.9 In fact, given the degree of damage former juvenile offenders may suffer in their adult lives by the retroactive application of the statutory requirement, we conclude that this factor is by far the most compelling in our analysis.
We recognize, of course, that the Supreme Court in Doe concluded that the retroactive application of the Alaska statute did not impose an "affirmative disability or restraint" upon adult sex offenders sufficient to con stitute punishment. The Court reasoned that "[t]he Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradig matic affirmative disability or restraint," Doe, 538 U.S. at 100; that "[a]lthough the public availability of the in formation may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of pub lic record," id. at 100-01; that the statute did not impose an in-person registration requirement, id. at 101; and that the requirements of registration are less onerous than the conditions of probation and supervised release, id. The Supreme Court's conclusion must be under stood, however, in the context of the public criminal jus tice system. The burden of sex offender registration upon a former juvenile offender is substantially, and decisively, different.
The key word in our analysis is "impose." To impose a disability is to place a disability on an individual where none previously existed. In the Alaska case, the statute did not impose disadvantages "that would not have oth erwise occurred." Id. at 100. There, the stigma and dis advantages derived "not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record." Id. at 101. Doe em phasized that it would be mere "conjecture" to conclude that the publication of sex offenders' information on the internet would impose a new barrier to their ability to find employment or housing, as landlords and employers could already conduct background checks and discover adult offenders' criminal history, which is public infor mation. Id. at 100. The Court likened the registration and notification provisions of the Alaska statute to "a visit to an official archive of criminal records." Id. at 99. The Court did not dispute that "substantial occupational or housing disadvantages" would result from the public's awareness of a defendant's status as a sex offender; in deed, it noted that "the public availability of the infor mation may have a lasting and painful impact on the convicted sex offender . . . ." Id. at 101. It held, how ever, that there was no proof that these damages "would not have otherwise occurred" as a result of the previous availability of the same information. Id. at 100.
Here, the precise opposite is true. SORNA's juvenile registration provision imposes all the conditions that the Supreme Court found the Alaska statute did not impose. None of the consequences that former juvenile offenders suffer as a result of the retroactive application to them of SORNA were imposed on adult offenders by virtue of the Alaska statute. Although the information in the reg istry at issue in Doe was already public knowledge, in formation about federal juvenile delinquency adjudica tions was not. Such information is, in the case of juve niles, ordinarily confidential and may not under most circumstances be disclosed to employers, landlords, or the general public. 18 U.S.C. § 5038 ("Unless otherwise authorized by this section, information about the juve nile record may not be released when the request for information is related to an application for employment . . . or any civil right or privilege.").
Confidentiality in juvenile proceedings is not abso lute, but it is generally carefully protected: The norm in juvenile delinquency adjudications is closed proceedings and sealed records.10 Such confidentiality has histori cally been one of the most significant factors differenti ating juvenile adjudications, which are designed to be rehabilitative, from adult criminal proceedings, which are designed to be punitive. District judges do have dis cretion to open juvenile proceedings and unseal portions of the record of juvenile adjudications under the FJDA, and disclosure to certain authorized persons for certain enumerated purposes is permitted. 18 U.S.C. § 5038(a). However, judges may not expose all juvenile proceed ings to public scrutiny as a general practice. They are charged, rather, with "the delicate task of weighing the interests of the juvenile and the public . . . in each case." United States v. A.D., 28 F.3d 1353, 1361 (3rd Cir. 1994).11 Moreover, the identity and the image of the juvenile may not be publicly disclosed even in cases in which the proceedings are opened or some of the doc uments from the case are released: The FJDA man dates that "neither the name nor picture of any juvenile shall be made public in connection with a juvenile delin quency proceeding." 18 U.S.C. § 5038(e). Thus, even in those cases in which the court decides to open the juve nile proceedings to those who wish to attend the trial, the juvenile defendant is not generally exposed to much more public awareness of his identity and criminal con duct than in the ordinary instance when his trial is closed. It is clear that a large-scale release of juvenile records of the magnitude authorized by SORNA, and the ensuing public display of those records on the internet, was prohibited under federal law as it existed prior to the passage of SORNA, and will have a significant and adverse life-long impact upon the individuals affected.
SORNA's juvenile registration provision, therefore, does not merely provide for further public access to in formation already available; it makes public information about sex offenders that would otherwise permanently remain confidential and exposes persons who were adju dicated delinquent years before to public humiliation and ignominy for the first time. It also seriously jeopar dizes the ability of such individuals to obtain employ ment, housing, and education.12 The registration and notification system here cannot be compared to a visit to a criminal archive, as such a visit would yield no infor mation about juvenile adjudications. The disadvantages that flow to former juvenile offenders on account of hav ing a public record as sex offenders must be attributed to SORNA alone.
Under SORNA, moreover, individuals who twenty or thirty years ago pled true to acts of juvenile delinquency -and who did so with the expectation that their adjudi cation would remain confidential-may, decades later, be required to publicly expose that information to friends, family, colleagues, and neighbors. Indeed, most of those affected by the retroactive application of SORNA's juvenile registration provision are not juve niles but adults. Many of these individuals have for many years led entirely law-abiding and productive lives that may be dramatically disrupted by the registration requirements. Some, had they known that they would years later be subject to registration requirements, might not have pled true to the charges at all.
Beyond these societal consequences of public regis tration as a sex offender, SORNA imposes additional administrative burdens in the form of "periodic in per son verification." 42 U.S.C. § 16916 ("[A] sex offender shall appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry in which that offender is required to be regis tered."). In upholding the retroactive application of Alaska's statute, the Court in Doe explicitly noted that the statute did not mandate in-person registration. Id. at 101. Every former juvenile offender subject to SORNA, by contrast, must register in person four times a year for at least 25 years.13 This requirement for ap pearances every three months before law enforcement officials is neither "minor" nor "indirect." Doe, 538 U.S. at 99-100. Every three months, the former juvenile of fenders will be required to be absent from work, appear before public officials, and publicly reaffirm that they are guilty of misdeeds that were previously protected from disclosure.14
Because SORNA's juvenile registration provision, retroactively applied to former juvenile offenders, im poses a serious disability by making public otherwise confidential delinquency records relating to sexual of fenses, and because the in-person registration require ment is substantially burdensome, SORNA's juvenile registration provision imposes an onerous "affirmative disability or restraint" on former juvenile offenders. Mendoza-Martinez, 372 U.S. at 168. As we have already stated, this factor weighs heavily in support of a finding that SORNA's juvenile registration requirement has a punitive effect. Given the severity of its burdens, it would be difficult to reach any other conclusion.
B. Historical treatment
We next consider whether requiring former juvenile sex offenders to register and report to law enforcement regularly is an historical means of punishment. The fact that sex offender registration and notification statutes "are of fairly recent origin," Doe, 538 U.S. at 97, sug gests, initially, that it is not. Doe held that the apparent similarity between sex offender registration and early forms of shaming punishments is "misleading," Id. at 98, and explained that
the stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a crimi nal record, most of which is already public. Our sys tem does not treat dissemination of truthful informa tion in furtherance of a legitimate governmental ob jective as punishment. On the contrary, our crimi nal law tradition insists on public indictment, pub lic trial, and public imposition of sentence. Trans parency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The public ity may cause adverse consequences for the con victed defendant, running from mild personal embar rassment to social ostracism. In contrast to the colo nial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.
Id. at 98-99 (emphasis added). We are struck, once again, by the vastly different situation of adult criminal defendants from that of juvenile offenders, and of the corresponding difference in the effect of registration upon the two groups. As Doe recognizes, adult criminal proceedings have long been a matter of public record, and indeed the right to a public trial in all criminal pros ecutions is fundamental under our Constitution. U.S. Const. Amend. VI. Full disclosure of the offense and the offender is an integral part of our punitive system. The public availability of information is not, however, a tradi tional part of the rehabilitative juvenile justice system. In fact, quite the opposite is true. A core distinguishing feature of the juvenile justice system has historically been that juveniles are, with certain exceptions, perma nently shielded from the public eye. The federal juve nile justice system was designed precisely in order to "remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation." Doe, 94 F.3d at 536 (quotation marks omitted).
Historically, information from juvenile adjudications has been made public only when a juvenile's case is transferred to adult criminal court for punitive pur poses. Beyond the exceptions to confidentiality in juve nile proceedings detailed supra in Part III.A, there are a select number of juveniles who are prosecuted pub licly. In certain circumstances, courts transfer such cases to adult court, shifting the juvenile out of a reha bilitative system entirely and into a punitive one. Under federal law, courts evaluate several factors when deter mining whether a juvenile will be treated as an adult, including the prior record of the offender, his response to past treatment, and the nature of the offense. 18 U.S.C. § 5032. Courts may give special weight to "the heinous nature of the crime," United States v. Doe, 94 F.3d at 536-37, and must strike a balance "between pro viding a rehabilitative environment for young offenders as well as protecting society from violent and dangerous individuals and providing sanctions for anti-social acts." Id. (quoting United States v. E.K., 471 F. Supp. 924, 932 (D. Oregon 1979)). A court's decision to send a juvenile to adult court is thus based in part on a prediction that rehabilitation is improbable. See United States v. Alex ander, 695 F.2d 398, 401 (9th Cir. 1982). A decision that a juvenile is beyond rehabilitation is a decision to expose him to the punitive elements of adult court, including the publication of his criminal record.
Although SORNA does not transfer a juvenile to adult court, it does make public the record of an other wise confidential juvenile adjudication. Creating a pub lic record of a federal juvenile offense is something that, historically, has been done only after the court's deter mination that the juvenile's case merits punishment, rather than rehabilitation. In short, the public disclo sure mandated by SORNA's juvenile registration provi sion is historically a central feature of a punitive rather than a rehabilitative system of justice. Still, in the end, we cannot say that this factor weighs in favor of holding the juvenile registration and notification provisions to be punitive in nature.
C. Traditional aims of punishment
We turn next to whether SORNA promotes the tradi tional aims of punishment-in particular, the aim of ret ribution. See Mendoza-Martinez, 372 U.S. at 168-69. As stated previously, we decline to rest our holding in this case on whether SORNA was enacted with a puni tive intent. Nevertheless, whether SORNA "will pro mote . . . retribution," id., is tied to the question whether Congress enacted SORNA with the goal of ret ribution in mind. In this light, we will consider whether SORNA's text and history suggest that the disadvan tages imposed are purely regulatory, or were designed, at least in part, in order to promote the traditional aims of punishment, and thus whether SORNA serves that purpose.
As we do so, we are aware both of the Supreme Court's decision in Doe, and of the inflamed public senti ment against sex offenders that served as the historical backdrop for SORNA's passage. Justice Souter, concur ring in Doe, saw the question of Alaska's legislative in tent as a close one. He explained:
It would be naive to look no further [than to the reg ulatory goal of public safety], given pervasive apti tudes toward sex offenders. The fact that the Act uses past crime as the touchstone, probably sweep ing in a significant number of people who pose no real threat to the community, serves to feed suspi cion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.
Doe, 538 U.S. at 109 (Souter, J., concurring in the judg ment) (internal citations omitted). SORNA's legislative history suggests that precisely such a retributive aim contributed to its passage-and more overtly than in the "close case" of Doe. See id. at 107. Unlike Alaska's stat ute, which contained no legislative purpose statement and was passed pursuant to legislative findings that fo cused solely on public safety, SORNA's legislative pur pose statement reveals an additional goal: to respond to the heinous crimes committed by sex offenders. SORNA was enacted "[i]n order to protect the public from sex offenders and offenders against children, and in re sponse to the vicious attacks by violent predators against the victims listed below . . . ." 42 U.S.C. § 16901 (emphasis added). The statute subsequently lists seventeen individual victims and details the crimes that were committed against them, strongly suggesting that the motivation behind SORNA's passage was not only to protect public safety in the future but also to "revisit past crimes." Doe, 538 U.S. at 109 (Souter, J., concurring in the judgment). Senator Grassley's floor statement similarly reflects a retributive sentiment that colored the legislative proceedings: "Child sex offend ers are the most heinous of all criminals. I can honestly tell you that I would just as soon lock up all the child molesters and child pornography makers and murderers in this country and throw away the key." 152 Cong. Rec. S8012, S8021 (daily ed. July 20, 2006) (statement of Sen. Grassley).
The purpose of the Ex Post Facto Clause is to pre vent the passage of "potentially vindictive legislation." Doe, 538 U.S. at 109 (Souter, J., concurring in the judg ment) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)) (internal quotation marks omitted). SORNA's legislative text and history contain substantial warning signs that its aim, while principally regulatory, to be sure, is also in some measure punitive.
D. Non-punitive purpose and excessiveness
We next consider whether SORNA's juvenile regis tration provision has a non-punitive purpose and, if it does, whether the requirement is excessive in relation to that goal. We must determine "whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 U.S. 520, 538 (1978). If the statute is reasonably related to a non-punitive pur pose then the statute is not usually considered punitive. Id. at 539. However, it is more likely to be punitive if it "appears excessive in relation to the alternative purpose assigned." Mendoza-Martinez, 372 U.S. at 169.
In Doe, the Court held that the Alaska statute had a nonpunitive purpose: improving public safety. 538 U.S. at 102. Undeniably, SORNA, too, was enacted in order to achieve that regulatory aim. Whether the means that it employs in order to achieve that purpose are exces sive, however, is a distinct-and a close-question. Al though Doe sets a stringent standard for excessiveness, there are valid and serious concerns both with the utility and with the extreme consequences of SORNA's juvenile offender registration requirement that warrant review.
On the one hand, Congress has extended SORNA's juvenile registration requirement to only a portion of those who were adjudicated delinquents: those who were "14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse . . . ." 42 U.S.C. § 16911(8). There was a debate in the Senate regarding whether SORNA should apply to juveniles at all, and if so to what extent. The result appears to have been a compromise.15
On the other hand, even compromises may be exces sively harsh. Given the low risk that former juvenile sex offenders pose to public safety and the lifetime confiden tiality that most former juveniles would otherwise enjoy, retroactively applying SORNA's juvenile registration provision is an exceptionally severe means of achieving the statute's nonpunitive goal.
In Doe, the Supreme Court held that the sex offender registration requirement was not excessive in light of its regulatory purpose, in part because sex offenders have a "high rate of recidivism," are dangerous "as a class," pose a danger to the public that is "frightening and high," and "are much more likely than any other type of offender to be rearrested for a new rape or sexual as sault." 538 U.S. at 103 (citations omitted).16
There is no evidence, however, that the "high rate of recidivism" at issue in Doe is shared by juvenile offend ers. Studies cited in the legislative history of this bill indicate that the recidivism rates for juvenile offenders are significantly lower than for adult offenders. See 152 Cong. Rec. S8012-02, S8023 (daily ed. July 20, 2006) (statement of Sen. Kennedy) ("For juveniles, the public notification provision in this bill is harsh given their low rate of recidivism, which is less than 8 percent according to the most recent studies."); Coalition for Juvenile Jus tice, Comments in Opposition to Interim Rule RIN 1.105 -AB22, 3 (2007) (citing study showing 5 to 14% recidi vism rate for juveniles, as compared to 40% rate of re cidivism for adults); Human Rights Watch, supra, at 69-70 (listing studies finding low recidivism rates among juvenile sex offenders). Research suggests, moreover, that only a small portion of adult sex offenders previ ously committed sex offenses as juveniles. See Human Rights Watch at 70.
These statistics are not surprising. Juveniles are as a general matter less mature, more impulsive, and more confused about sexually appropriate behavior than adults. They do not understand their sexual drives as well or know how to deal with them. We do not, of course, excuse such conduct as mere juvenile exuber ance. We simply recognize that the predictive value of an individual's conduct, especially sexual conduct, at the age of fourteen or fifteen is, under most circumstances, limited. For that reason, requiring former juvenile sex offenders to register as such many decades thereafter will often not only be unnecessary to secure the safety of the community but may even be counterproductive.
It is worth noting that, in practice, those who are primarily affected by SORNA's retroactive application to former juvenile offenders are not the most likely to recidivate-they are, rather, those adults who are forced to register solely because they committed an offense as a juvenile, but who have lived the rest of their adult lives without committing another such crime. Adults who re-offended in the past after their initial juvenile offense are required to register in any event by SORNA's retro active application to adult sex offenders, and adults who re-offend in the future are required to register by SORNA's basic provisions.
In addition to the personal toll on those who are la beled as sex offenders, registration of former juvenile offenders undermines the rehabilitative goals of our ju venile justice system as a whole, and derails the histori cal effort to avoid permanently or publicly stigmatizing juveniles as criminals. It may also seriously affect the lives of the spouses and children of these former juvenile sexual offenders. Sacrificing confidentiality and lessen ing the chance of rehabilitation for former juvenile sex offenders who have not re-offended are severe measures to aid in achieving public safety, in light of the impor tance of the contravening interests and the relatively low risk that such offenders pose to the community. Indeed, the severity of the measures may well increase the risk of recidivism within a population that otherwise has the greatest potential for rehabilitation.
Notwithstanding all this, we recognize that "[t]he excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the prob lem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the non-punitive objective." Doe, 538 U.S. at 105. Whether that test has been met here is a close and difficult ques tion. To us, SORNA's effect on former juvenile offend ers does "appear excessive in relation to the [non-puni tive] purpose assigned." Mendoza-Martinez, 372 U.S. at 169. Recognizing the limited nature of our inquiry, however, as well as the Supreme Court's decision in Doe, we will not give much weight either way to this factor in making our ultimate determination.
The retroactive application of SORNA's provision requiring registration and reporting by former juvenile offenders imposes immense burdens, not only through onerous in-person registration and reporting require ments, but, more important, through the publication and dissemination of highly prejudicial juvenile adjudication records of individuals who have committed no offenses since their adolescence-records that would otherwise remain sealed. The juvenile registration requirement, for the first time under federal law, exposes thousands of former juvenile offenders to public notoriety and sub jects them to lifetime condemnation and ostracism by their community. The effects of this exposure are wide- ranging, and likely include serious housing, employment, and educational disadvantages. Unlike in Doe, for for mer juvenile offenders generally these effects are solely attributable to SORNA. The publicity that once juvenile offenders, now law abiding adults, face is, moreover, something that has traditionally attached to juvenile offenders only if they are transferred to an adult-and punitive-system. Historically, public exposure consti tutes an integral part of a punitive and not a juvenile or rehabilitative regime. Additionally, while it is indisput able that SORNA was enacted as a regulatory measure in order to promote public safety, there is evidence that this non-punitive aim was mixed to some degree with a less evident desire for retribution as well. Finally, im posing the burdens of registration upon former juvenile offenders is a harsh measure in view of the low rate of recidivism for juvenile offenders and the importance of the countervailing goal of rehabilitation; it is a close question, however, whether it is excessive in light of Con gress's non-punitive objectives. All this, of course, is in addition to the onerous requirement that these former juvenile offenders report in person every three months to law enforcement authorities for a large portion of their adult lives.
Although we are not bound by the Mendoza- Marti nez factors, they prove useful to our analysis in this case. Taken together, they provide "the clearest proof," Kansas v. Hendricks, 521 U.S. 346, 361 (1997), that the effect of the Attorney General's regulation that retroac tively imposes SORNA's juvenile registration and re porting requirement upon former juvenile offenders who were found delinquent prior to the passage of the stat ute, is punitive. Of this, we are fully persuaded. The requirement serves to convert a rehabilitative judicial proceeding, sheltered from the public eye, into a puni tive one, exposed for all to see, and with long-lasting substantially adverse and harsh effects. In some in stances, the retroactive implementation of SORNA's provisions will most certainly wreak havoc upon the lives of those whose conduct as juveniles offended the funda mental values of our society but who, we hope, have been rehabilitated. For these reasons, we conclude that the retroactive application of SORNA's juvenile registration and reporting requirement violates the Ex Post Facto Clause of the United States Constitution.17 We there fore VACATE the part of the judgment order that per tains to registration and reporting as a sex offender, and hold that S.E. may not constitutionally be obligated to register as a sex offender under SORNA.
VACATED in part and REMANDED in part.
4. APPENDIX B
5. IN THE UNITED STATES DISTRICT COURT
6. FOR THE DISTRICT OF MONTANA
7. GREAT FALLS DIVISION
No. CR 05-54-GF-SEH (JUV)
UNITED STATES OF AMERICA, PLAINTIFF
S. E., DEFENDANT
[Filed: July 26, 2007]
A hearing to determine whether the juvenile, S.E., violated the terms of his probation was held on July 26, 2007. The juvenile admitted violating the terms of his probation.
1. The Court finds by clear and convincing evidence that the juvenile, S.E. , has violated the following term of his probation:
a. Special condition number 5 which requires that the juvenile reside in a federally-approved prere lease center.
2. In accordance with the Federal Juvenile Delin quency Act, it is adjudged that Juvenile Delinquent Su pervision is revoked. Disposition is made under 18 U.S.C. § 5037 after considering the statutory provisions, the Chapter 7 Policy Statements and guideline range, and all of the circumstances of the current violations. It is the judgment of the Court that Juvenile, S.E. , be committed to the custody of the United States Attorney General for a six (6) month term of official detention. It is recommended that Juvenile be placed in a facility that provides the most comprehensive array of correctional programming and rehabilitation services for juveniles. It is recommended that Juvenile have access to an ac credited education program, healthcare, mental health counseling including anger management and sex of fender counseling, chemical dependency counseling, moral recognition therapy, life skills development, em ployment training, spiritual programming sensitive to American Indian culture, visitation with family, and re lease/aftercare planning.
3. Following release from official detention, Juvenile shall be placed on Juvenile Delinquent Supervision until Juvenile's 21st birthday on May 2, 2008. Within 72 hours of release from custody of the Attorney General, Juve nile shall report in person to the United States Proba tion Office in the district to which he is released.
4. While on supervision, Juvenile shall not commit another federal, state, or local crime, shall not possess a controlled substance, and shall be prohibited from owning, using or being in constructive possession of fire arms, ammunition, or other dangerous devises while on supervision and any time after the completion of the period of supervision, unless granted relief by a delegate of the Secretary of the Treasury.
5. Further, Juvenile shall comply with the standard conditions of release as recommended by the United States Sentencing Commission, and which have been adopted by this Court. Juvenile shall also comply with the following special conditions:
a. Juvenile shall register in person as a sex offender with local/tribal/county law enforcement in the jurisdic tion in which he resides, is employed, and is a student within three (3) business days of Juvenile's arrival in that jurisdiction.
b. Juvenile shall, not later than three (3) business days after each change of name, residence, employment, and/or student status, appear in person in at least one jurisdiction in which he is required to register to report such changes.
c. If required to register as a sex offender under the Adam Walsh Child Protection and Safety Act of 2006, Juvenile shall submit his person, and any property, house, residence, vehicle, papers, computer, other elec tronic communication data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with rea sonable suspicion concerning a violation of a conditions of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the offi cer's supervision functions.
d. Juvenile shall have no contact with the victim without permission of United States Probation Office.
e. Juvenile shall not be allowed to reside in the home, residence, or be in the company of any child under the age of 18 without prior approval of United States Probation.
f. Juvenile shall enter and complete a sex offender treatment program as directed by and until released by the United States Probation Office. Juvenile shall abide by the policies of the program. Juvenile is to pay all or part of the costs of treatment as determined by the United States Probation Officer.
g. Juvenile shall abstain from the consumption of alcohol and shall not enter establishments where alcohol is the primary item of sale. This condition supersedes standard condition number 7 with respect to alcohol con sumption only.
h. Juvenile shall participate in substance abuse test ing, to include not more than 104 urinalysis tests and not more than 104 breathalyzer tests annually during the period of supervision. Juvenile is to pay all or part of the costs of testing as determined by the United States Probation Officer.
i. Juvenile shall participate in and complete a pro gram of substance abuse treatment as approved by the United States Probation Office, until Juvenile is re leased from the program by the probation officer. Juve nile is to pay part or all of the cost of this treatment, as determined by the United States Probation Officer.
j. Juvenile shall not possess any materials depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A)(i)-(v), including visual, auditory, telephonic, or electronic media, and computer programs or services.
DATED this 26th day of July, 2007.
/s/ SAM E. HADDON
SAM E. HADDON
United States District Judge
8. APPENDIX C
1. 18 U.S.C. 2241 provides:
Aggravated sexual abuse
(a) BY FORCE OR THREAT.-Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institu tion, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly causes another person to engage in a sexual act-
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title, im prisoned for any term of years or life, or both.
(b) BY OTHER MEANS.-Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institu tion, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly-
(1) renders another person unconscious and thereby engages in a sexual act with that other per son; or
(2) administers to another person by force or threat of force, or without the knowledge or permis sion of that person, a drug, intoxicant, or other simi lar substance and thereby-
(A) substantially impairs the ability of that other person to appraise or control conduct; and
(B) engages in a sexual act with that other person;
or attempts to do so, shall be fined under this title, im prisoned for any term of years or life, or both.
(c) WITH CHILDREN.-Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institu tion, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the Attorney General, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title and imprisoned for not less than 30 years or for life. If the defendant has previously been convicted of another Federal of fense under this subsection, or of a State offense that would have been an offense under either such provision had the offense occurred in a Federal prison, unless the death penalty is imposed, the defendant shall be sen tenced to life in prison.
(d) STATE OF MIND PROOF REQUIREMENT.-In a prosecution under subsection (c) of this section, the Gov ernment need not prove that the defendant knew that the other person engaging in the sexual act had not at tained the age of 12 years.
2. 18 U.S.C. 2250 provides in pertinent part:
Failure to register (a) IN GENERAL.-Whoever-
(1) is required to register under the Sex Of fender Registration and Notification Act;
(2)(A) is a sex offender as defined for the pur poses of the Sex Offender Registration and Notifica tion Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a reg istration as required by the Sex Offender Registra tion and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.
* * * * *
3. 18 U.S.C. 3563 provides in pertinent part:
Conditions of probation
(a) MANDATORY CONDITIONS.-The court shall pro vide, as an explicit condition of a sentence of probation-
* * * * *
(8) for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act
* * * * *
4. 18 U.S.C. 5037 provides in pertinent part:
* * * * *
(d)(3) The provisions dealing with probation set forth in sections 3563 and 3564 are applicable to an or der placing a juvenile on juvenile delinquent supervi sion.
* * * * *
5. 18 U.S.C. 5038 provides in pertinent part:
Use of juvenile records
(a) Throughout and upon the completion of the juve nile delinquency proceeding, the records shall be safe guarded from disclosure to unauthorized persons. The records shall be released to the extent necessary to meet the following circumstances:
(1) inquiries received from another court of law; (2) inquiries from an agency preparing a pre sentence report for another court;
(3) inquiries from law enforcement agencies where the request for information is related to the investigation of a crime or a position within that agency;
(4) inquiries, in writing, from the director of a treatment agency or the director of a facility to which the juvenile has been committed by the court;
(5) inquiries from an agency considering the person for a position immediately and directly affect ing the national security; and
(6) inquiries from any victim of such juvenile delinquency, or if the victim is deceased from the immediate family of such victim, related to the final disposition of such juvenile by the court in accor dance with section 5037.
Unless otherwise authorized by this section, information about the juvenile record may not be released when the request for information is related to an application for employment, license, bonding, or any civil right or privi lege. Responses to such inquiries shall not be different from responses made about persons who have never been involved in a delinquency proceeding.
* * * * *
(c) During the course of any juvenile delinquency proceeding, all information and records relating to the proceeding, which are obtained or prepared in the dis charge of an official duty by an employee of the court or an employee of any other governmental agency, shall not be disclosed directly or indirectly to anyone other than the judge, counsel for the juvenile and the Govern ment, or others entitled under this section to receive juvenile records.
* * * * *
(e) Unless a juvenile who is taken into custody is prosecuted as an adult neither the name nor picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.
(f) Whenever a juvenile has on two separate occa sions been found guilty of committing an act which if committed by an adult would be a felony crime of vio lence or an offense described in section 401 of the Con trolled Substances Act or section 1001(a), 1005, or 1009 of the Controlled Substances Import and Export Act, or whenever a juvenile has been found guilty of committing an act after his 13th birthday which if committed by an adult would be an offense described in the second sen tence of the fourth paragraph of section 5032 of this ti tle, the court shall transmit to the Federal Bureau of Investigation the information concerning the adjudica tions, including name, date of adjudication, court, of fenses, and sentence, along with the notation that the matters were juvenile adjudications.
6. 42 U.S.C. 16901 provides:
Declaration of purpose
In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this chapter establishes a compre hensive national system for the registration of those offenders:
(1) Jacob Wetterling, who was 11 years old, was abducted in 1989 in Minnesota, and remains missing.
(2) Megan Nicole Kanka, who was 7 years old, was abducted, sexually assaulted, and murdered in 1994, in New Jersey.
(3) Pam Lychner, who was 31 years old, was attacked by a career offender in Houston, Texas.
(4) Jetseta Gage, who was 10 years old, was kid napped, sexually assaulted, and murdered in 2005, in Cedar Rapids, Iowa.
(5) Dru Sjodin, who was 22 years old, was sexu ally assaulted and murdered in 2003, in North Da kota.
(6) Jessica Lunsford, who was 9 years old, was abducted, sexually assaulted, buried alive, and mur dered in 2005, in Homosassa, Florida.
(7) Sarah Lunde, who was 13 years old, was strangled and murdered in 2005, in Ruskin, Florida.
(8) Amie Zyla, who was 8 years old, was sexu ally assaulted in 1996 by a juvenile offender in Waukesha, Wisconsin, and has become an advocate for child victims and protection of children from ju venile sex offenders.
(9) Christy Ann Fornoff, who was 13 years old, was abducted, sexually assaulted, and murdered in 1984, in Tempe, Arizona.
(10) Alexandra Nicole Zapp, who was 30 years old, was brutally attacked and murdered in a public restroom by a repeat sex offender in 2002, in Bridge water, Massachusetts.
(11) Polly Klaas, who was 12 years old, was ab ducted, sexually assaulted, and murdered in 1993 by a career offender in California.
(12) Jimmy Ryce, who was 9 years old, was kid napped and murdered in Florida on September 11, 1995.
(13) Carlie Brucia, who was 11 years old, was ab ducted and murdered in Florida in February, 2004.
(14) Amanda Brown, who was 7 years old, was abducted and murdered in Florida in 1998.
(15) Elizabeth Smart, who was 14 years old, was abducted in Salt Lake City, Utah in June 2002.
(16) Molly Bish, who was 16 years old, was ab ducted in 2000 while working as a lifeguard in War ren, Massachusetts, where her remains were found 3 years later.
(17) Samantha Runnion, who was 5 years old, was abducted, sexually assaulted, and murdered in California on July 15, 2002.
7. 42 U.S.C. 16911 provides in pertinent part:
Relevant definitions, including Amie Zyla expansion of sex offender definition and expanded inclusion of child predators
In this subchapter the following definitions apply:
* * * * *
(2) Tier I sex offender
The term "tier I sex offender" means a sex offender other than a tier II or tier III sex offender.
(3) Tier II sex offender
The term "tier II sex offender" means a sex offender other than a tier III sex offender whose offense is pun ishable by imprisonment for more than 1 year and-
(A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an of fense against a minor:
(i) sex trafficking (as described in section 1591 of title 18);
(ii) coercion and enticement (as described in section 2422(b) of title 18);
(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a))18 of title 18;
(iv) abusive sexual contact (as described in section 2244 of title 18);
(i) use of a minor in a sexual performance;
(ii) solicitation of a minor to practice prostitu tion; or
(iii) production or distribution of child por nography; or
(C) occurs after the offender becomes a tier I sex offender.
(4) Tier III sex offender
The term "tier III sex offender" means a sex of fender whose offense is punishable by imprisonment for more than 1 year and-
(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18); or
(ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years;
(B) involves kidnaping of a minor (unless com mitted by a parent or guardian); or
(C) occurs after the offender becomes a tier II sex offender.
* * * * *
(6) Criminal offense
The term "criminal offense" means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense.
* * * * *
(8) Convicted as including certain juvenile adjudica tions
The term "convicted" or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was compa rable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18), or was an attempt or conspiracy to commit such an offense.
8. 42 U.S.C. 16912 provides:
Registry requirements for jurisdictions
(a) Jurisdiction to maintain a registry
Each jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this subchapter.
(b) Guidelines and regulations
The Attorney General shall issue guidelines and reg ulations to interpret and implement this subchapter.
9. 42 U.S.C. 16913 provides in pertinent part:
Registry requirements for sex offenders
(a) In general
A sex offender shall register, and keep the registra tion current, in each jurisdiction where the offender re sides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration
The sex offender shall initially register-
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the regis tration requirement; or
(2) not later than 3 business days after being sen tenced for that offense, if the sex offender is not sen tenced to a term of imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that ju risdiction of all changes in the information required for that offender in the sex offender registry. That jurisdic tion shall immediately provide that information to all other jurisdictions in which the offender is required to register.
(d) Initial registration of sex offenders unable to comply with subsection (b)
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enact ment of this chapter or its implementation in a particu lar jurisdiction, and to prescribe rules for the registra tion of any such sex offenders and for other categories of sex offenders who are unable to comply with subsec tion (b).
* * * * *
10. 42 U.S.C. 16914 provides:
Information required in registration
(a) Provided by the offender
The sex offender shall provide the following infor mation to the appropriate official for inclusion in the sex offender registry:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex of fender.
(3) The address of each residence at which the sex offender resides or will reside.
(4) The name and address of any place where the sex offender is an employee or will be an em ployee.
(5) The name and address of any place where the sex offender is a student or will be a student.
(6) The license plate number and a description of any vehicle owned or operated by the sex of fender.
(7) Any other information required by the At torney General.
(b) Provided by the jurisdiction
The jurisdiction in which the sex offender registers shall ensure that the following information is included in the registry for that sex offender:
(1) A physical description of the sex offender.
(2) The text of the provision of law defining the criminal offense for which the sex offender is regis tered.
(3) The criminal history of the sex offender, in cluding the date of all arrests and convictions; the status of parole, probation, or supervised release; registration status; and the existence of any out standing arrest warrants for the sex offender.
(4) A current photograph of the sex offender.
(5) A set of fingerprints and palm prints of the sex offender.
(6) A DNA sample of the sex offender.
(7) A photocopy of a valid driver's license or identification card issued to the sex offender by a jurisdiction.
(8) Any other information required by the At torney General.
11. 42 U.S.C. 16915 provides:
Duration of registration requirement
(a) Full registration period
A sex offender shall keep the registration current for the full registration period (excluding any time the sex offender is in custody or civilly committed) unless the offender is allowed a reduction under subsection (b). The full registration period is-
(1) 15 years, if the offender is a tier I sex of fender;
(2) 25 years, if the offender is a tier II sex of fender; and
(3) the life of the offender, if the offender is a tier III sex offender.
(b) Reduced period for clean record
* * * * *
In the case of-
* * * * *
(B) a tier III sex offender adjudicated de linquent for the offense which required regis tration in a sex registry under this title, the period during which the clean record shall be maintained is 25 years.
In the case of-
* * * * *
(B) a tier III sex offender adjudicated de linquent, the reduction is from life to that pe riod for which the clean record under para graph (2) is maintained.
12. 42 U.S.C. 16916 provides:
Periodic in person verification
A sex offender shall appear in person, allow the ju risdiction to take a current photograph, and verify the information in each registry in which that offender is required to be registered not less frequently than-
(1) each year, if the offender is a tier I sex of fender;
(2) every 6 months, if the offender is a tier II sex offender; and
(3) every 3 months, if the offender is a tier III sex offender.
13. 42 U.S.C. 16918 provides:
Public access to sex offender information through the Internet
(a) In general
Except as provided in this section, each jurisdiction shall make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry. The jurisdiction shall maintain the Internet site in a manner that will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user. The jurisdiction shall also include in the design of its Internet site all field search capabilities needed for full participation in the Dru Sjodin National Sex Offender Public Website and shall participate in that website as provided by the Attorney General.
(b) Mandatory exemptions
A jurisdiction shall exempt from disclosure-
(1) the identity of any victim of a sex offense;
(2) the Social Security number of the sex of fender;
(3) any reference to arrests of the sex offender that did not result in conviction; and
(4) any other information exempted from disclo sure by the Attorney General.
(c) Optional exemptions
A jurisdiction may exempt from disclosure-
(1) any information about a tier I sex offender convicted of an offense other than a specified of fense against a minor;
(2) the name of an employer of the sex of fender;
(3) the name of an educational institution where the sex offender is a student; and
(4) any other information exempted from dis closure by the Attorney General.
The site shall include, to the extent practicable, links to sex offender safety and education resources.
(e) Correction of errors
The site shall include instructions on how to seek correction of information that an individual contends is erroneous.
The site shall include a warning that information on the site should not be used to unlawfully injure, harass, or commit a crime against any individual named in the registry or residing or working at any reported address. The warning shall note that any such action could result in civil or criminal penalties.
14. 42 U.S.C. 16921 provides:
Megan Nicole Kanka and Alexandra Nicole Zapp Commu nity Notification Program
(a) Establishment of Program
There is established the Megan Nicole Kanka and Alexandra Nicole Zapp Community Notification Pro gram (hereinafter in this section referred to as the ''Pro gram'').
(b) Program notification
Except as provided in subsection (c), immediately after a sex offender registers or updates a registration, an appropriate official in the jurisdiction shall provide the information in the registry (other than information exempted from disclosure by the Attorney General) about that offender to the following:
(1) The Attorney General, who shall include that information in the National Sex Offender Reg istry or other appropriate databases.
(2) Appropriate law enforcement agencies (in cluding probation agencies, if appropriate), and each school and public housing agency, in each area in which the individual resides, is an employee or is a student.
(3) Each jurisdiction where the sex offender resides, is an employee, or is a student, and each jurisdiction from or to which a change of residence, employment, or student status occurs.
(4) Any agency responsible for conducting employment-related background checks under sec tion 5119a of this title.
(5) Social service entities responsible for pro tecting minors in the child welfare system.
(6) Volunteer organizations in which contact with minors or other vulnerable individuals might occur.
(7) Any organization, company, or individual who requests such notification pursuant to proce dures established by the jurisdiction.
Notwithstanding subsection (b), an organization or individual described in subsection (b)(6)or (b)(7) may opt to receive the notification described in that subsection no less frequently than once every five business days.
15. 42 U.S.C. 16925 provides:
Failure of jurisdiction to comply
(a) In general
For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under Subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
(b) State constitutionality
(1) In general
When evaluating whether a jurisdiction has sub stantially implemented this subchapter, the Attor ney General shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction's highest court.
If the circumstances arise under paragraph (1), then the Attorney General and the jurisdiction shall make good faith efforts to accomplish substantial implementation of this subchapter and to reconcile any conflicts between this subchapter and the juris diction's constitution. In considering whether com pliance with the requirements of this subchapter would likely violate the jurisdiction's constitution or an interpretation thereof by the jurisdiction's high est court, the Attorney General shall consult with the chief executive and chief legal officer of the ju risdiction concerning the jurisdiction's interpreta tion of the jurisdiction's constitution and rulings thereon by the jurisdiction's highest court.
(3) Alternative procedures
If the jurisdiction is unable to substantially im plement this subchapter because of a limitation im posed by the jurisdiction's constitution, the Attor ney General may determine that the jurisdiction is in compliance with this chapter if the jurisdiction has made, or is in the process of implementing19 rea sonable alternative procedures or accommodations, which are consistent with the purposes of this chap ter.
(4) Funding reduction
If a jurisdiction does not comply with paragraph (3), then the jurisdiction shall be subject to a fund ing reduction as specified in subsection (a).
Amounts not allocated under a program referred to in this section to a jurisdiction for failure to substan tially implement this subchapter shall be reallocated under that program to jurisdictions that have not failed to substantially implement this subchapter or may be reallocated to a jurisdiction from which they were with held to be used solely for the purpose of implementing this subchapter.
(d) Rule of construction
The provisions of this subchapter that are cast as directions to jurisdictions or their officials constitute, in relation to States, only conditions required to avoid the reduction of Federal funding under this section.
16. 28 C.F.R. 72.3 provides:
Applicability of the Sex Offender Registration and Notifi cation Act.
The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registra tion is required prior to the enactment of that Act.
Example 1. A sex offender is federally convicted of aggravated sexual abuse under 18 U.S.C. 2241 in 1990 and is released following imprisonment in 2007. The sex offender is subject to the requirements of the Sex Of fender Registration and Notification Act and could be held criminally liable under 18 U.S.C. 2250 for failing to register or keep the registration current in any jurisdic tion in which the sex offender resides, is an employee, or is a student.
Example 2. A sex offender is convicted by a state jurisdiction in 1997 for molesting a child and is released following imprisonment in 2000. The sex offender ini tially registers as required, but disappears after a cou ple of years and does not register in any other jurisdic tion. Following the enactment of the Sex Offender Reg istration and Notification Act, the sex offender is found to be living in another state and is arrested there. The sex offender has violated the requirement under the Sex Offender Registration and Notification Act to register in each state in which he resides, and could be held crim inally liable under the 18 U.S.C. 2250 for the violation because he traveled in interstate commerce.
1 For ease of reference, we will refer in this opinion to the individuals affected by the retroactivity provision as "former juvenile offenders."
2 Because we reverse the district court's imposition of the registra tion requirement and hold that in light of the Ex Post Facto Clause, S.E. is not required to register as a sex offender under SORNA, we do not consider his additional arguments that the retroactive application of SORNA violates procedural due process, substantive due process, and the nondelegation doctrine.
3 Due to the age of the victim, any sexual act is deemed non- consen sual and criminal. Without specifying any requisite degree of force, or any age differential between the perpetrator and the victim, 18 U.S.C. § 2241(c) defines "knowingly engag[ing] in a sexual act with another person who has not attained the age of 12 years" as aggravated sexual abuse. Additionally, under SORNA,"[a]n offense involving consensual sexual conduct is not a sex offense for the purposes of [SORNA] . . . if the victim was at least 13 years old and the offender was not more than 4 years older than the victim." 42 U.S.C. § 16911(5)(C). Consen sual conduct involving a child younger than 13 is, therefore, a sex of fense, regardless of the age of the individual accused of wrongdoing.
4 SORNA also requires all individuals convicted of qualifying offenses under state law to register as sex offenders. See 42 U.S.C. § 16911(6). The effect of this requirement upon former juvenile offenders varies state by state, in light of preexisting law. Because this appeal concerns the effects of SORNA upon an individual adjudicated delinquent under the F JDA, we limit our discussion to individuals adjudicated delinquent in the federal system. We do not express any opinion regarding the constitutionality of SORNA's registration requirements vis-a-vis individuals adjudicated delinquent in any particular state juvenile proceedings.
5 Doe does not foreclose the argument that SORNA was enacted with a punitive legislative intent, as that case considered an Alaska state law with a different legislative history. We are not, of course, bound by district court rulings that SORNA is regulatory and not punitive. See, e.g., United States v. LeTourneau, 534 F. Supp. 2d 718, 721 (S.D. Tex. 2008) (finding no ex post facto violation and citing other district court cases coming to the same result).
6 Here, as in Doe,
The two remaining Mendoza-Martinez factors-whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime-are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registra tion, a duty not predicated upon some present or repeated violation.
Id. at 105.
7 Due process does attach to juvenile proceedings. In re Gault, 387 U.S. 1, 30 (1967). However, there is no constitutional requirement "that juvenile proceedings be by indictment or jury trial." United States v. Juvenile, 228 F.3d 987, 990 (9th Cir. 2000) (citing McKeiver v. Pennsyl vania, 403 U.S. 528, 545 (1971)) (jury trial not constitutionally required in juvenile proceeding); United States v. Indian Boy X, 565 F.2d 585, 595 (9th Cir. 1977) (indictment not required in juvenile proceeding).
8 Our reasons for distinguishing Doe apply as well to Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997) and Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004). Russell and Hatton rejected Ex Post Facto chal lenges to sex offender registration requirements for those convicted of sex offenses as adults. Neither discussed whether the registration re quirements would be punitive if imposed on those adjudicated delin quent in the juvenile justice system, nor did they address the contrast ing approaches to privacy/publicity in the juvenile and adult systems. In fact, the Russell court specifically recognized that "[t]he information collected and disseminated by the Washington statute is already fully available to the public . . . ." Russell, 124 F.3d at 1094 (rejecting of fenders' contention that the registration and notification requirements violated their right to privacy).
9 Although we conclude that SORNA imposes a severe disability, we do not agree that SORNA "redefines a juvenile adjudication and makes it a conviction," as S.E. argues. For the purposes of SORNA, certain juvenile adjudications are included within the definition of a "convic tion." SORNA does not, however, in any other way convert a juvenile delinquency finding into a conviction, and individuals who have been ad judicated delinquent are not felons or convicted criminals for any non- SORNA purpose.
10 Indeed, the district judge stated on the record at S.E.'s revocation hearing that "this is a juvenile proceeding. Consequently, it is closed to members of the public."
11 See also United States v. Eric B., 86 F.3d 869, 879 (9th Cir. 1996) (applying the A.D. balancing test); United States v. Three Juveniles, 61 F.3d 86 (1st Cir. 1995) (adopting the Third Circuit's approach but noting that closed juvenile proceedings are the "norm").
12 As Justice Souter explained, concurring in Doe,
[T]here is significant evidence of onerous practical effects of being listed on a sex offender registry. See, e.g., Doe v. Pataki, 120 F.3d 1263, 1279 (2d Cir. 1997) (noting "numerous instances in which sex offenders have suffered harm in the aftermath of notification- ranging from public shunning, picketing, press vigils, ostracism, loss of employment, and eviction, to threats of violence, physical attacks, and arson"); E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997) ("The record documents that registrants and their families have experienced profound humiliation and isolation as a result of the reaction of those notified. Employment and employment opportunities have been jeopardized or lost. Housing and housing opportunities have suffered a similar fate. Family and other per sonal relationships have been destroyed or severely strained. Retribution has been visited by private, unlawful violence and threats and, while such incidents of 'vigilante justice' are not com mon, they happen with sufficient frequency and publicity that registrants justifiably live in fear of them"); Brief for Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (describing specific incidents).
Doe, 538 U.S. at 109 n.* (Souter, J., concurring).
13 See 42 U.S.C. § 16911(8) (applying SORNA only to juvenile offenses comparable to, or more severe than, aggravated sexual assaults); § 16911(4)(A)(i) (defining aggravated sexual assaults as Tier III offens es); § 16915(a)(3) (providing that Tier III offenders must register for life); § 16915(b)(2)(B) (providing that juvenile offenders may seek a reduction of their registration requirement after 25 years, if they keep a "clean" record); § 169161(3) (requiring Tier III offenders to verify registration information, in person, every three months).
14 See, e.g., Human Rights Watch, No Easy Answers: Sex Offender Laws in the US 74 (Sept. 2007), available at http://www.hrw.org/sites/ default/files/reports/ us0907webwcover.pdf.
15 Ranking Judiciary Committee member Senator Leahy explained,
This bill correctly allows the States, in many cases, to use their expertise-and they know more about these issues than we do here in Washington-to decide which juveniles should be on sex offender registries, to what extent, and for how long. It also appropriately requires the States to include the most egregious juvenile offend ers, who do represent a threat to others, on their sex offender registries. I think the bill goes too far in a few cases in limiting States' discretion to determine which juveniles should be placed on registries and to allow those juvenile offenders who have lived cleanly and turned their lives around to get off of registries. But overall, this bill strikes an acceptable balance on this issue, and I am glad that those of us who were concerned about appropriate deference to the expertise of the States spoke out and were heard to some extent.
152 Cong. Rec. S8012-02, S8027 (daily ed. July 20, 2006) (statement of Sen. Leahy).
16 Justice Ginsburg strongly disagreed:
What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose . . . . [T]he Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerous ness. And the duration of the reporting requirement is keyed not to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation. However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation.
Doe, 538 U.S. at 116-17 (2003) (Ginsburg, J., dissenting) (citations and footnote omitted).
17 United States v. George, 579 F.3d 962 (9th Cir. 2009), addressed an ex post facto challenge to SORNA's criminal provisions from an adult defendant who was convicted of a sex offense prior to SORNA and then convicted under SORNA for failure to register. Smith v. Doe had already established that under SORNA adults may be constitutionally required to register as sex offenders based on pre-SORNA convictions, 538 U.S. 84 (2003), and George did not consider the separate issue we decide here, whether juvenile offenders may be constitutionally re quired to register based on pre-SORNA adjudications. In any event, George was lawfully required to register as a sex offender as a condi tion of his pre-SORNA plea agreement. George argued that his failure to register was a one-time event that took place before SORNA took ef fect, and therefore his conviction for violating SORNA amounted to an unconstitutional retrospective application of a criminal law. We held otherwise, stating, inter alia, that George, whose initial requirement to register was lawful, violated the law not only when he failed to comply but as long thereafter as he continued to fail to do so. In short, we held that when there is a lawful obligation to register, that obligation is a continuing one. George's offense of not registering continued from SORNA's passage on, and SORNA's imposition of criminal liability for the post-SORNA conduct raised no ex post facto issue. George does not affect our decision here. Because Juvenile Male (S.E.) could not law fully be required to register on the basis of his pre-SORNA conduct, and that was the only improper sexual conduct with which he was charged, he did not, under our decision here, violate any lawful require ment of SORNA. As there was no obligation on S.E.'s part to register, there was, of course, no continuing obligation to do so.
18 So in original. The second closing parenthesis probably should fol low "18".
19 So in original. Probably should be followed by a comma.