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United States: Appeals Court Rules Juvenile Sex Offender Retroactive Registration Requirements Violate Ex Post Facto Clause

(Sept. 22, 2009) In a case of first impression, the United States Court of Appeals for the Ninth Circuit has held that retroactive application of a provision of the Sex Offender Registration and Notification Act (“SORNA”), part of the 2006 Adam Walsh Child Protection and Safety Act, violates the ex post facto clause of the United States Constitution.

SORNA requires sex offenders convicted before its enactment, including adults and juveniles, to register with the National Sex Offender Registry. A juvenile who had been adjudicated as a sex offender in 2005, before passage of SORNA, brought a constitutional challenge against retroactive application of the law to juveniles.

The Ninth Circuit held that the law's retroactive application to juvenile offenders violates the ex post facto clause. In doing so, it distinguished the instant case from a Supreme Court case, Smith v. Doe, 538 U.S. 84 (2003), which held that retroactive application of a similar state statute to adult offenders was constitutionally permissible. The Ninth Circuit observed that convictions of adult offenders, such as in Doe, are matters of public record, while juvenile proceedings occur outside the public domain. It concluded:

The [registration] requirement serves to convert a rehabilitative judicial proceeding, sheltered from the public eye, into a punitive one, exposed for all to see, and with long-lasting substantially adverse and harsh effects. In some instances, the retroactive implementation of SORNA's provisions will most certainly wreak havoc upon the lives of those whose conduct as juveniles offended the fundamental values of our society but who, we hope, have been rehabilitated.

(United States v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009), available at http://www.ca9.uscourts.gov/datastore/opinions/2009/09/10/07-30290.pdf.)