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PHILIP J. KOHN
PUBLIC DEFENDER
Nevada Bar #0556
Juvenile Division
601 North Pecos Road, #49
Las Vegas, NV 89101
(702) 455-5475
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DISTRICT COURT
FAMILY DIVISION
CLARK COUNTY, NEVADA
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IN THE MATTER OF,
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Date of Birth: //19
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CASE NO. J
DEPT. NO. A
Date: March 20, 2008
Time: 1 p.m.
SUBJECT MINOR’S REPLY TO STATE’S OPPOSITION
TO MOTION FOR A FINDING BY THE COURT THAT
THE LEGISLATIVE ENACTMENT A. B. 579 IS
UNCONSTITUTIONAL AS APPLIED TO
ADJUDICATIONS OF DELINQUENCY
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COMES NOW the subject minor, <, by and through his undersigned counsel, Susan D.
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Roske, Deputy Public Defender and submits this Reply to the States’ Opposition to his Motion to
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this Honorable Court to declare the application of A. B. 579 is unconstitutional as it applies to an
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adjudication of delinquency.
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Dated this 13th day of March, 2008.
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PHILIP J. KOHN
PUBLIC DEFENDER
By: _________________________
Susan D. Roske,
State Bar No. 1584
Chief Deputy Public Defender
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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
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WHETHER THE STATUTORY CHANGES IN A. B.
579 INCLUDES JUVENILE OFFENDERS IN THE
PROVISIONS FOR LIFETIME SUPERVISION AND
APPLICATION OF PRESENCE AND RESIDENCY
RESTRICTIONS IN S. B. 471.
Subject Minor noted in his Motion that the law is unclear, but that it appears that A.B. 579
mandates certain individuals adjudicated as a juvenile delinquent, be subject to lifetime
supervision, among other sanctions, and the presence and residency restrictions in S. B. 471 (See,
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Subject Minor’s Motion for Finding by the Court that the Legislative Enactment A. B. 579 is
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Unconstitutional as Applied to Adjudications of Delinquency, hereinafter, “Motion,” Nevada’s
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Legal Framework Relevant for Juvenile Sex Offenders.) Counsel for the state, in preparing his
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Opposition to Motion for Finding by the Court that the Legislative Enactment A. B. 579 is
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Unconstitutional as Applied to Adjudications of Delinquency (hereinafter, “Opposition”), had the
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benefit of the all of statutory changes written in statutory form (after the enactment of A.B. 579
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and S. B. 471). Counsel for the state points out in his “Opposition” that it appears from reading
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the statutes that the lifetime supervision provision applies only to an adult convicted of a “sex
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offense” and not to the definition of “sex offenders” which includes adjudications of delinquency
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in NRS 62F.200. Also, the presence and residency restrictions in S.B. 471 apply to those
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convicted of a “sex offense” as opposed to a “sex offender” and therefore do not apply to Tier III
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sex offenders who have been adjudicated delinquents of an offense listed in NRS 62F.200.
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Subject minor submits the statutes in question are unclear, confusing, vague and
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ambiguous; that numerous individuals and officials have misinterpreted the language in the two
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relevant bills from the state legislature. This fact only heightens subject minor’s argument in his
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“Motion” that the law is impermissibly vague. “The vagueness doctrine is based upon the principle
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that ‘a statute which either forbids or requires the doing of an act in terms so vague that men of
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common intelligence must necessarily guess at its meaning and differ as to its application, violates
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the first essential of due process of law.’ Thus, when a statute is so unclear that vagueness
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pervades the law’s content, it is subject to a facial attack.” In re T. R., 119 Nev. 646,652, 80 P. 3d
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1276 (2003). Because the Legislative Enactment is confusing and could be subject to arbitrary
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enforcement, subject minor urges this court, at a minimum, to make a finding, as a matter of law,
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that these provisions –lifetime supervision and the presence and residency restrictions- do not
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apply to individuals adjudicated delinquent of an offense listed in NRS 62F.200.
I.
LEGAL ARGUMENT
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WHETHER APPLICATION OF A. B. 579 TO
CHILDREN ADJUDICATED DELINQUENT IN
JUVENILE COURT VIOLATES THE DUE PROCESS
CLAUSES OF THE NEVADA AND UNITED STATES
CONSTITUTIONS.
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The United States Constitution guarantees that no state shall deprive “any person of life,
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liberty, or property without due process of law; nor deny to any person within its jurisdiction the
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equal protection of the laws.” United States Constitution, Amendment XIV. ” See also, Nevada
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Constitution Article 1, §8, clause 5. Since the enactment of McKeiver v. Pennsylvania, 403 U.S.
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528, 551, 91 S.Ct. 1976, 1989 (1971), Nevada statutes applicable in juvenile delinquency actions
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have permitted juveniles to be free from lifetime stigmatization. This hallmark of juvenile justice
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has been obliterated by the recent enactments. This, of course, runs counter to the long standing
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philosophical underpinning of the juvenile justice system. The fact that A. B. 579 will impact
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many individuals who have aged out of the delinquency system and gone on with their lives only
heightens the injustice of this legislation. Calling delinquency proceedings “non-criminal,” for
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these juvenile sex offenders, is disingenuous. These proceedings now result in adjudications with
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widespread and long-term impact. The adjudications will be made part of public record; they will
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result in a “brand” of infamy that will haunt a juvenile all the days of his life.
The state relies upon the case of In re Hezzie R., 219 Wis.2d 848, 580 N.W.2d 660 (1998),
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to support it’s position that the statutory changes in A.B. 579 as applied to adjudications of
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delinquency does not run afoul of the United States and Nevada Constitutions. The Wisconsin
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Court, in addressing this issue, emphasized that because juveniles, under its law, have safeguards
and protections, the state’s sex offender registration laws are valid. The Wisconsin law, unlike A.
B. 579, does not create an inflexible and rigid registration system.
The juveniles fail to recognize that those reporting requirements may be waived.
Under Wis. Stat.§938.34(15)(m)(bm)(1997-98), a juvenile need not comply with
the reporting requirements of §301.45 if “the court determines, after a hearing on a
motion made by the juvenile, that the juvenile is not required to comply under s.
301.45(1m).”
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The requirements of §301.45, therefore, are only imposed on a juvenile who is
adjudicated delinquent where the particular facts of the case and concerns for public
safety dictate it. This is not criminal punishment and does not equate the JJC to a
criminal code.
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Id., 580 N.W.2d at 671-672.
Unlike the Wisconsin statutory scheme, the new Nevada statutes do not provide any
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safeguards and protections for adjudications of delinquency; the reporting requirement cannot be
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waived. All children who have been or will be adjudicated delinquent for an offense listed in NRS
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62F.200 will be subject to widespread dissemination (for a minimum of twenty-five years to a
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lifetime) of their personal information and subjected to the requirement that they frequently appear
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in person to update their photo and registry information. This is without any consideration to the
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fact that they pose low risk to recidivate and have been rehabilitated and become a law abiding
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adult. Subject minor submits this arises to the level of being punitive which is discussed in more
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detail in Arguments II and IV of subject minor’s “Motion” and “Reply.”
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The state also cites In the Interest of J.T., 13 P.3d 321, 323 (Colo. App. 2000) which states
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that the statutory duty in Colorado to register as a sex offender is not criminal punishment citing
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the case People v. Montaine, 7 P.3d 1065 (Colo.App. 1999). The Montaine case involved an adult
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sex offender. In neither case was there any analysis of the distinction of juvenile offenders
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compared to adult offenders, whether or not the state statutory scheme has limitations or
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safeguards for juvenile offenders or whether or not it conflicts with the purpose of the Juvenile
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Justice Act.
In State v. J.H., 96 Wash.App. 167, 978 P.2d 1121, rev. denied, 139 Wash.2d 1014, 994
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P.2d 849 (1999), cert. denied, 529 U.S. 1130, 120 S.Ct 2005 (2000), the Washington state court
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was presented with the issue of whether the changes in the Juvenile Justice Act, as a whole, made
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the entire process so similar to adult proceedings that all juvenile offenders were entitled to a trial
by jury. One of the changes mentioned by the appellants was the fact that certain juvenile sex
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offenders are subject to community notification and registration. The Washington appellate court
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merely noted that the “adult sex offender registration statute does not constitute punishment, but
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rather is a regulatory measure. It follows that community notification requirements for juvenile
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offenders are likewise not punitive, and do not affect a juvenile offender's right to a jury trial.”Id.,
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at 1129 (footnote omitted). As was the case in In the Interest of J.T., supra, no analysis was made
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of the distinction of juvenile offenders compared to adult offenders, whether or not the state
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statutory scheme has limitations or safeguards for juvenile offenders or it conflicts with the
purpose of the Juvenile Justice Act.
The state asserts, at page 19 of the “Opposition,” that the Minnesota Court of Appeals
faced the same issue raised by subject minor in Welfare of C.D.N., 559 N.W.2d 431 (Minn.App.
1997). This is not an accurate reading of the case as the Minnesota law merely involved
“registration” and not “community notification.” The Minnesota court pointed out that the purpose
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of the state statute was to provide law enforcement officials with the whereabouts of sexual
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offenders to assist them with investigations and explained that “[f]urthermore, law enforcement
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must keep registration data confidential.” Id., at 434. Clearly, this protective measure, or some
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reasonable alternative, is not present in the Nevada legislative enactment.
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The state criticizes the subject minor for “totally ignoring” New Jersey case law addressing
a juvenile’s due process challenge to the state’s Megan’s Law in the case styled In re Registrant
J.G., 169 N.J. 304, 777 A.2d 891 (2001). See “Opposition,” at page 8.
The law and facts in
J.G. are significantly distinguishable from this case. J.G. was a ten year old adjudicated sex
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offender. Unlike Nevada law under A. B. 579, New Jersey provides for a hearing to determine
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Tier level based on an individualized assessment of risk. He was assessed to be Tier 2. Id., 777
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A.2d at 896. The Tier system in New Jersey is similar to the Tier system in place in Nevada prior
to the enactment of A.B. 579 (and explained in Nollette v. State, infra). That is, the higher the
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individualized risk of the individual, the higher the Tier Level (Tier 1, Tier 2, or Tier 3); thus the
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more widespread the community notification. Id. The New Jersey High Court had to reconcile
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whether J.G. possessed criminal capacity and understood the act that he admitted in a plea
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agreement. The New Jersey court reduced the Tier Assessment to Tier 1. Id., 777 A.2d at 910.
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Further, the New Jersey Court tried to reconcile the state’s “Megan’s Law” with the Juvenile
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Justice Act. The Court looked to common law and noted that at common law, children less than
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seven years of age are conclusively presumed incapable of criminal intent; children between ages
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seven and fourteen are rebuttably presumed incapable of criminal intent. Id., 777 A.2d at 901-906.
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The Court harmonized the conflicting provisions of Megan’s Law and the Juvenile Code with
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children under the age of fourteen and held that Megan’s Law registration and community
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notification orders shall terminate at age eighteen after a hearing held on motion of the adjudicated
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delinquent and proving by clear and convincing evidence that they were not likely to pose a threat
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to the safety of others. Id., 777 A.2d at 912. The New Jersey Court did not disturb the ruling of the
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Appellate Division which limited notification to school only; based upon the New Jersey Supreme
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Court’s determination that J.G. should be assessed at Tier 1. Id. The Court rejected J.G.’s
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constitutional challenges in view of the court’s determination that the registration and notification
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requirements for children under 14 can terminate upon the age of eighteen. Id. The Court did not
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analyze this issue regarding children ages 14-17.
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J.G. was discussed by the noted expert, Franklin Zimring, in his treatise, An American
Travesty, [Franklin E. Zimring, University of Chicago Press (2004)]. Zimring discusses our
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society’s failure to consider the developmental status of adolescent sex offenders and asserts that
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current policy toward young sex offenders is rarely based on fact and is often the result of false
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premises.
The wave of Megan’s Laws that swept the country in the
mid-1990’s is a potential disaster for youth welfare and the interests
of juvenile justice. The policies of the juvenile courts toward
adolescent and child offenders were needlessly swept up in the
public reaction to lethal violence by adult recidivists. But some
good might yet come from this recent trend. Cases like In re
Registrant J.G. are more than the reductio ad absurdum of a legal
system blind to the significance of the different stages of human
development. They are a wake-up call to all who are concerned
about policy toward youth. By raising the stakes in our treatment of
young sex offenders, the recent wave of registration and community
notification laws may finally provoke the attention and
perspective that are the precondition to rational and humane
legal policy.
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Id, at page 159 (emphasis supplied). Zimring points out that “[c]ommunity notification amounts to
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being branded for life as a sexual offender. It may be difficult to undo the harms generated by sex-
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offender registration but it is impossible to undo the harms of community notification.” Id., at 155.
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(emphasis supplied).
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The state cites In the Matter of Ashley Wentworth, 251 Mich.App. 560, 651 N.W.2d 773
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(Mich.App 2002), which found the state juvenile registration and community notification laws did
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not deprive her of liberty interests without due process of law. The court noted that under
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Michigan state law, “the information made public by the SORA is already a matter of public
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record . . .” Id. at 778. The state fails to mention the fact that in this opinion, the Michigan Court
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found this particular legislation so offensive that it suggests that it may be “cruel and unusual
punishment” an issue that was not presented to the court for review. Id., 779-780. (See,
Arguments II and IV below).
The state claims that the information disclosed through Nevada’s community notification
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system is already largely a matter of public record. Subject minor respectfully disagrees with this
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assertion. It is the state’s position that because names, faces, dates of birth, vehicle registration
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information, physical descriptions, addresses and similar information are already in the public
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domain that the information is a matter of public record for access by the general public. The state
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asserts that information such as juvenile court records are public information. “Opposition,” at
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page 45. Although juvenile delinquency hearings may now be open to the public, the proceedings
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are still considered “not criminal in nature” NRS 62D.010. There are still limitations on the press
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publishing the name and race of a child connected with delinquency proceedings. NRS 62H.020.
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Juvenile records may only be opened for inspection upon a court order to persons who have a
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legitimate interest in the records. NRS 62H.030. This is not information easily accessed by the
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general public. Current photographs of minors, their addresses and the make of the car they drive
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is not a matter of public record. The general public cannot access court records or even school
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records (or Department of Motor Vehicle Records, etc.) to determine where a child resides, his
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description, his date of birth or a description of a car he has access to. This is not information that
is accessible by the general public. Further, the state’s simplistic argument cannot withstand close
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scrutiny. It may be true that one’s name and face are subject to the public, the fact that the face
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and name have the lifetime brand of infamy as a sex offender is the critical difference.
The state discounts subject minor’s concerns of vigilantism and asserts that “[c]ommon
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sense dictates that the person or persons most likely to victimize the sex offender is (sic) his
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victims and people close to his victims.” “Opposition,” at page 45. The state completely ignores
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the information offered by the subject minor that vigilantism is a very real concern for these youths
who pose no risk or danger to the community. No validation of the real concern that “street
justice” (acts of violence) on children is acknowledged.
The Supreme Court of New Jersey held that the State and Federal Constitutions required
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that any decision to provide community notification must be “subject to judicial review before
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such notification is given.” Doe v. Portiz, 142 N.J. 1, 12, 662 A.2d 367 (1995). In Doe v. Portiz,
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the New Jersey Court concluded that public notification implicates protected liberty interests in
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privacy and reputation that trigger due process rights under the State and Federal Constitutions.
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Id., 662 A.2d at 417. The New Jersey Court also concluded that considerations of fundamental
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fairness, as well as the principles of due process, require that Tier II or III offenders, must also be
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granted a pre-notification hearing. Id., at 422.
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In Doe v. A.G., 426 Mass. 136, 686 N.E.2d 1007 (1997), the plaintiff made a due process
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challenge to the absence of any statutory procedure that would permit or require a determination
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that a low level sex offender should not be require to register at all.
The availability of information upon request concerning a registered sex
offender threatens the reputation of the offender and stigmatizes him as a currently
dangerous sex offender. The sex offender act requires the plaintiff to take action
that will register him as presenting a risk of committing a sex offense and creates
the reasonable possibility that he will suffer adverse economic consequences from
the disclosure of his new status in addition to the derision of people in the
community.
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Id., at 1011-1012. The Massachusetts Supreme Court held that a public agency must have some
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evidence of an offender’s future dangerousness, likelihood of reoffense, or threat to the
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community, to justify disclosure to the public in a given case. Id., at 1012. Similarly, juvenile
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offenders that will be affected by A. B. 579 are generally low risk offenders. Specifically, the
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subject minor has been deemed to be a low risk. Widespread community notification on the
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internet of his youthful transgression will stigmatize him as a currently dangerous sex offender.
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In Coming of Age in America: The Misapplication of Sex-Offender Registration and
Community –Notification Laws to Juveniles, Elizabeth Garfinkle, 91 Calif. L. Rev. 163 (January,
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2003), the author examines the dangerous inconsistencies inherent in the state and federal
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applications of registration and community notification laws to juveniles as compared to the
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rationales behind those laws and the theories and practices of the juvenile justice system. The
author concludes:
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Children who commit sexual offenses generally have the same
vulnerabilities and are in the same need of protection as the child victims whom the
proponents of Megan’s Laws claim to protect. But Megan’s Laws have the unique
propensity to gravely harm some children in the hope of protecting an unknown
few. Many child sex offenders are victims of sexual abuse themselves. Many more
engage in common sexual behavior, sometimes healthy, sometimes inappropriate,
that they will most likely learn to manage. Megan’s Laws stigmatize and isolate
these children, limiting their opportunities for normal growth and exacerbating the
kinds of vulnerabilities that lead to future criminality, both sexual and nonsexual.
When lawmakers vociferously declared that children were in more need of
protection than convicted sex offenders, they never indicated that some of the sex
offenders they were targeting were themselves vulnerable children.
The American criminal justice system has long been a battleground between
the warring goals of punitive retribution and utilitarian crime prevention. In many
aspects, retribution is winning to such an extent that payments for crimes are
exacted throughout the offender’s life. Mandatory minimums have exponentially
increased time behind bars for certain drug violations. In many states, felons forfeit
their political rights even upon release. And more states are enacting automatic
transfer to adult court for some juvenile offenses. Juveniles fortunate enough to
remain in the juvenile justice system have generally been protected from these
increased consequences. Now, Megan’s Laws have dismantled this last protective
holdout. By applying Megan’s Laws to juvenile adjudications, states throw out a
century of juvenile justice jurisprudence and scholarship to protect an even older
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tradition of fear about childhood sexuality. In so doing, lawmakers perpetuate
irreparable damage to the very children they claim to protect.
Id., at 205.
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II.
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WHETHER RETROACTIVE APPLICATION OF A.
B. 579 TO JUVENILE DELIQUENTS VIOLATES EX
POST FACTO CLAUSES OF THE NEVADA AND
UNITED STATES CONSTITUTIONS.
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The state argues in its “Opposition” that application of Registration and Community
Notification requirements to adjudications of delinquency is not an ex post facto punishment, but
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merely a regulatory scheme designed to promote public safety. (See, Argument II of the state’s
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“Opposition” at page 78). The state relies heavily upon the United States Supreme Court decision
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in Smith v. Doe, 538 U.S. 84 (2002). The state fails to mention that the sex offenders in Smith v.
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Doe, supra, were adults, not juveniles. Further, the case was not analyzed from this perspective.
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The Court noted the statute in question did not violate the ex post facto prohibition because the
statute was nonpunitive. The Court noted that the determinative question is whether the legislature
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meant to establish “civil proceedings.” Even if the legislative intent was to enact a regulatory
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scheme that is civil and nonpunitive, the court must further examine whether the statutory scheme
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is so punitive either in purpose or effect as to negate the state’s intention to denominate it as being
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merely a “civil” matter. Id. at 92. The Court in Smith v. Doe noted that the Alaska legislature
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found that “sex offenders pose a high risk of reoffending” and identified “protecting the public
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from sex offenders” as the “primary governmental interest” of the law. Id. at 93. The Court then
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examined the effects of the statute to determine whether it was in fact punitive using the seven
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factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). The Court noted that the
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dissemination of public information was “more analogous to a visit to an official archive of
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criminal records . . .” Smith v. Doe, supra, at 99. The Court also noted that landlords and
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employers could also conduct background checks for criminal records on prospective tenants or
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employees even with the legislation under question. Id. at 100. The United State Supreme Court in
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Smith v. Doe, was not faced with analyzing a registration and community notification scheme for
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individuals adjudicated delinquent. The Court did not address the fact that juvenile records are not
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a matter of public record; access to juvenile records cannot be obtained by any person by a visit to
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an official archive and cannot be obtained by employers and landlords. The United States
Supreme Court did not discuss whether application of this legislation to adjudications of
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delinquency would be contrary to the philosophy of the juvenile court and the well-established
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principle that juvenile delinquents are not to be treated the same as adults convicted of the same
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crime. The United States Supreme Court did not analyze whether a constitutional violation exists
for individuals who have not been afforded full constitutional protections, including, but not
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limited to, the right to trial by jury.
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The court in Smith v. Doe, supra, noted that the lower appellate court reasoned that
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periodic updates imposed an affirmative disability (a factor in the Kennedy v. Mendoza-Martinez
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analysis). The Supreme Court noted that the appellate court was under a misapprehension that the
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offender had to update the registry in person. The Supreme Court pointed out that the record
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contains no indication that an in-person appearance is imposed by the statute. The Supreme Court
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stated that a constitutional objection to a mandatory reporting requirement was beyond the scope
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of the opinion. Id. at 102. However, the legislative enactment being reviewed by this court in the
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instant case, unlike the statutes in Smith v. Doe, supra, does indeed have a mandatory reporting
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requirement and indeed imposes an affirmative disability on adjudicated delinquents by requiring
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they appear in person to register every 90 days (Tier III) or 180 days (Tier II).
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Finally, in Smith v. Doe, supra, the United States Supreme Court noted that the most
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significant factor in the determination that the legislation was not punitive was the Act’s rational
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relationship to a non-punitive purpose. Id., at 102. The Court noted that the legislature’s findings
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are consistent with grave concerns over the high rate of recidivism among convicted sex offenders
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and their dangerousness as a class. Id., at 103. In the instant case, there is no factual or scientific
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basis to find that juveniles adjudicated for the offenses delineated in NRS 62F.200 have a high rate
of recidivism and are dangerous. The evidence is to the contrary as outlined in the subject minor’s
“Motion.” The state suggests this “premise is of questionable veracity” (“Opposition” at page 73)
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citing Palmer v. State, 118 Nev. 823, 828, 59 P.3d 1192, 1195 (2002) (quoting, Hearing on S.B.
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192 Before the Assembly Comm. on Judiciary, 68th Leg., at 11-12 (Nev., April 12, 1995)
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(statements of Senator Mark A. James and Senator Raymond D. Rawson). The Palmer case
involved an adult, not a juvenile. In fact, a review of the Legislative History referenced above,
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Senator James was discussing the high rate of recidivism of adult sex offenders after release from
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prison. “He reviewed statistics in an article in an ADA Journal (sic) which reflect a person
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beginning as a juvenile sex offender will commit an average of 360 sex offenses in a lifetime; the
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problem is a sickness and that is why the system has not been successful in dealing with the
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offenders.” Id. This author’s limited research could not locate an ADA Journal aside from the
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American Dental Association, which is unlikely to be the Journal cited by Senator James. It is not
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clear which study Senator James was discussing and the efficacy of the study. But it is clear that
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Senator James was not discussing the recidivism rates of juvenile sex offenders. It is also clear the
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Senator James was not saying that all juvenile sex offenders commit an average of 360 sex
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offenses in their lifetime. He was discussing adult sex offenders upon release from prison and the
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fact that treatment programs for adult offenders were not generally successful. The fact is
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treatment programs for juvenile sex offenders have proven to be highly successful and the
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recidivism rate is very low. (See Affidavit of Rayna Rogers, attached as Exhibit “A” to subject
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minor’s “Motion”).
In addressing the issue of whether the Nevada legislative enactment is sufficiently non-
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punitive to survive the ex post facto challenge, the state cites a number of cases to support its
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position that the statutory scheme in A. B. 579 is not punitive. The majority of the cases cited by
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the state, which concludes registration and community notification to be non-punitive, are cases
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involving adult sex offenders. See, Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003),
Smith v. Doe, et al, 538 U.S. 84 (2003), Doe v. Miller, 405 F.3d 700 (2005), State v. Seering, 701
N.W.2d 655 (2005).
The Nevada Supreme Court has analyzed this issue and held that in the context of an adult
criminal conviction, registration and community notification is not a penal consequence. Nollette
v. State, 118 Nev. 341, 46 P.3d 87 (2002). However, the Nollette Court noted that the information
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disseminated was based upon an individualized assessment of the individual’s risk of committing
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future crimes. Id. 118 Nev. at 345-346.
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punitive” the Nollette Court noted that:
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In determining whether the requirements are “non-
The registration laws do not place an affirmative disability or
restraint on the sex offender. There is nothing in the text of the sex
offender registration act that would preclude the offender from living
in any particular place or that would place an undue restraint on an
offender’s right to travel. Additionally, the limitations and
guidelines in place for dissemination of the registered person’s
information to the public, namely the three-level classification
system, ensure that community disclosure occurs to prevent future
harm where the risk of reoffense is high, not to punish past conduct.
Although Nollette argues that the community-notification
requirement is punishment because he will be stigmatized by
dissemination of his personal information, we note that at least some
of the information provided, in particular, the nature of the
offender’s conviction, is a matter of public record irrespective of the
registration requirement.
27
28
14
The Nollette Court noted that although the statute might have a deterrent effect, which is a
1
2
traditional aim of punishment, that fact alone does not make it a punitive statute. “The mere
3
possibility of a secondary, deterrent effect does not, without more, make the statue punitive in
4
nature.” Id. at 347 (emphasis supplied).
5
6
Subject minor submits that there is a much more punitive effect in the application of A. B.
579 to individual’s adjudicated delinquent than the statute addressed in Nollette. First, as noted
7
8
9
above, the tier-level classification system described in Nollette is repealed and replaced with new
categorical approach based solely on the adjudicated offense (which typically implicates the
10
prosecutor’s personal predilection as to how seriously to charge a matter). The Nollette Court
11
reasoned that the three-level classification ensured the protection of low risk offenders from
12
13
unwarranted community notification. However, under A. B. 579, the three-level classifications are
redefined and no longer ensure that there is community disclosure only when the risk is high.
14
15
Under the rigid categorical approach, the prosecutor’s choice to charge a matter more seriously
16
drives the entire statutory scheme. All sex offenders are subject to community disclosure, not
17
merely those who pose a high risk. Juvenile offenders will be classified as Tier II or Tier III even
18
though their actual risk level is extremely low. Children adjudicated delinquent for these
19
enumerated sex offenses will be subject to registration and community notification which includes
20
dissemination of personal information on the public website. Further, they are subject to criminal
21
22
23
prosecution for failure to abide by the mandates of the statute.
In State v. Myers, 260 Kan. 669, 700, 923 P.2d 1024, 1062 (1996), the Kansas Supreme
Court found that the state’s sex offender registration act’s disclosure provision to be punishment.
24
25
26
27
We hold that the legislative aim in the disclosure provision was not to punish and
that retribution was not an intended purpose. However, we reason that the
repercussions, despite how they may be justified, are great enough under the facts
of this case to be considered punishment. The unrestricted public access given to
the sex offender registry is excessive and goes beyond that necessary to promote
public safety.
28
15
1
2
3
Because KSORA's (Kansas Sex Offender Registration Act) disclosure provision
makes more burdensome the punishment for a crime after its commission, we
conclude K.S.A. 22-4909, as applied to Myers, violates the constitutional
prohibition against ex post facto laws.
Although, the state has cited cases analyzing several states’ sex offender registration and
4
5
community notification laws application to adjudications of delinquency, most of the cases cited
6
by the state on this issue have significant protections for juveniles that are not present in Nevada’s
7
statutory scheme. The state cites In the Matter of Appeal in Maricopa County Juvenile Action No.
8
JV-132744, 188 Ariz. 180, 933 P.2d 1248 (Ariz.App.Div. 1, 1996) to support its position.
9
However, the state fails to disclose that the “registration and information pertaining to it are
10
available only to law enforcement agencies and are not included in the information available under
11
12
13
the recently enacted community notification law.” Id, 933 P.2d at 1251-52. This protection for
juvenile offenders in the Arizona statute is not present in the legislation enacted in A.B. 579.
14
Similarly, in the case cited by the state, In re J.W., 204 Ill. 2d 50, 787 N.E.2d 747 (2003),
15
the Court noted “the Notification Law actually strictly limits the availability of information with
16
regard to juvenile offenders.” Id. 787 N.E. 2d at 759.
17
18
19
20
Consequently, information concerning a juvenile sex offender may be
disseminated to a member of the public only if that person’s safety might be
compromised for some reason and only in the appropriate agency’s or department’s
discretion. Information concerning juvenile sex offenders is not available over the
Internet.
21
22
Id. At 560. Likewise, in the case cited by the state, In re C.D.N., 559 N.W. 2d 431 (Minn. App.
23
1997), the Minnesota appellate court noted that the sex offender registration law does not create an
24
affirmative disability or restraint on the ground that the information is private data used only for
25
law enforcement purposes. Id., at 433. Further, the Washington statutory scheme analyzed in
26
Washington v. Heiskell, 129 Wn2d 113, 916 P.2d 366 (1996), and cited by the state, allows for
27
juveniles to petition the superior court to be relieved of the duty to register.
28
16
One of the few cases cited by the state which upheld a juvenile sex offender registration
1
2
and community notification scheme that did not have procedural safeguards or protections for the
3
juvenile adjudication was the case of In the Matter of Ashley Wentworth, 251 Mich.App. 560, 651
4
N.W.2d 773 (Mich.App 2002). However, the issue of whether the Act was punitive in nature was
5
not raised by the parties. The state failed to mention that the Wentworth Court was very critical of
6
the application of the Act to juvenile offenders:
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9
10
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15
16
17
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20
21
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23
24
25
26
27
Although we hold that the SORA (Sex Offender Registration Act) is not an
unconstitutional deprivation of respondent’s liberty or privacy interests, we express
our concern over the draconian nature of this act. As noted above, under the
requirements of the SORA, respondent’s registration would remain confidential
while she remains a juvenile; however, once she reaches the age of majority, that
information would be added to the public database and would remain there for the
rest of her life. Although we do not debate the seriousness of the circumstances
surrounding the offense in this particular case, we question the propriety of
publicly and permanently labeling juveniles as convicted sex offenders.
Traditionally, our justice system has distinguished between juvenile delinquency
and adult criminal conduct. MCL 712A.1 (2), which confers jurisdiction over
juveniles on the family division of the circuit courts, specifically states that
“proceedings under this chapter are not criminal proceedings.” MCL 712A.23 also
limits the admissibility of juvenile records in both criminal and civil proceedings in
an attempt to “hide youthful errors from the full glare of the public . . .” People v.
Poindexter, 138 Mich. App. 322, 326; 361 N.W. 2d 346 (1984). The public
notification provisions of the SORA appear to conflict with our traditional
reluctance to criminalize juvenile offenses and our commitment to keep records
confidential.
In Ayres, supra, we held that the juvenile registration requirements of the
SORA did not constitute cruel or unusual punishment in part because juveniles
were exempt from the public notification requirements of the act. 239 Mich.
App. At 20-21. We also concluded “in light of the existence of strict statutory
safeguards that protect the confidentiality of registration data concerning juvenile sex
offenders” that the act did not offend the premise of our juvenile system that “a
reformed adult should not have to carry the burden of a continuing stigma for
youthful offenses.” 239 Mich. App. At 21. However, the recent amendment of the
statute removing those confidentiality safeguards raises questions about the
continuing validity of our holding in Ayres. Because respondent did not raise
this issue on appeal, we will not address it in this opinion. People v. Brown, 239
Mich.App. 735, 748; 610 N.W.2d 234 (2000). Instead, we invite the Legislature to
reconsider whether the implied purpose of the act, public safety, is served by
requiring an otherwise law-abiding adult to forever be branded as a sex
offender because of a juvenile transgression.
28
17
In re Wentworth, supra, 651 N.W.2d at 779-780 (emphasis supplied).
1
2
The Alabama Appellate Court, in State v. C.M., 746 So.2d 410 (Ala. Crim. App. 1999)
3
reviewed Alabama’s Community Notification Act under an ex post facto analysis. The C.M. court
4
noted the legislative intent and purpose in enacting the Juvenile Justice Act was not to punish but
5
to rehabilitate. The Alabama Supreme Court noted protections and safeguards from registration
6
and community notification requirements afforded juvenile sex offenders in other states. Id. at
7
8
9
413. The C.M. Court noted that Alabama's Act requires that all sex offenders, no matter the
circumstances surrounding the offense, register as convicted sex offenders and be subject to the
10
community notification provisions of the Act. Id. The court found the provisions of the Act as
11
applied to juveniles are excessive, given their purpose of protecting the public and as applied to
12
13
juveniles, and found the Act goes well beyond what is necessary to accomplish its stated purpose.
Id. At 419. The court held that the “effect of Alabama's Community Notification Act is to punish
14
15
C.M. and C.D.M. more harshly for a crime than was possible when the offense was committed;
16
therefore, as to them and similarly situated juveniles, the act violates the Ex Post Facto Clause of
17
the United States Constitution.” Id., at 420. A.B. 579 is similar to the Alabama Act in that it
18
requires all sex offenders (this term includes adjudications of delinquency of a crime listed in NRS
19
62.200) register as convicted sex offenders and be subject to the community notification provisions
20
of the legislation. Subject minor submits these provisions are excessive, given their purpose of
21
22
protecting the public and as applied to juveniles. Therefore, as to the subject minor as those
23
similarly situated juvenile sex offenders, the legislation violates the ex post facto clauses of the
24
Nevada and United States Constitutions.
25
26
27
28
18
III.
1
WHETHER RETROACTIVE APPLICATION
OF A. B. 579 TO CHILDREN ADJUDICATED
DELINQUENT IN JUVENILE COURT
VIOLATES THE CONTRACT CLAUSE OF
THE STATE AND FEDERAL
CONSTITUTIONS.
2
3
4
5
6
7
8
Subject minor submits and reasserts his argument on this issue contained in subject minor’s
“Motion.”
IV.
9
10
APPLICATION OF A. B. 579 TO
ADJUDICATIONS OF DELINQUENCY IS
CRUEL AND UNUSUAL PUNISHMENT IN
VIOLATION OF THE NEVADA AND
UNITED STATES CONSTITUTIONS
11
12
13
14
15
The United States Constitution prohibits the infliction of “cruel and unusual” punishment.
16
United States Constitution, Amendment VIII; Nevada Constitution, Article 1, section 6. The Court
17
recognized the Eighth Amendment “must draw its meaning from the evolving standards of
18
decency that mark the progress of a maturing society.” Trop v. Dulles, 428 U.S. 153, 180, 96 S.Ct.
19
2902, 2929 (1976).
20
21
The Michigan Appellate Court reviewed an Eighth Amendment claim in the case of In re
22
Ayers, 239 Mich. App. 8, 608 N.W.2d 132 (1999). Ayers argued that the registration requirement
23
undermines a purpose of the juvenile code (i.e., to shield youthful errors from the glare of the
24
public by preventing juvenile court convictions from subsequently discrediting the individual
25
26
because of childhood actions).
In deciding if punishment is cruel or unusual, the Ayers Court
looked to the gravity of the offense and the harshness of the penalty, comparing the punishment to
27
28
the penalty imposed for other crimes in this state as well as the penalty imposed for the same crime
19
in other states, as well as the goal of rehabilitation. People v. Poole, 218 Mich. App. 702, 715; 555
1
2
N.W. 2d 485 (1996); People v. Launsburry, 217 Mich. App.358, 363; 551 N.W.2d 460 (1996).
3
The Court concluded that in light of the strict statutory safeguards to protect the confidentiality of
4
registration data concerning juvenile sex offenders, the registration requirement imposed by the
5
act, as it pertains to juveniles, neither "punishes" nor offends a basic premise of the juvenile justice
6
system--that a reformed adult should not have to carry the burden of a continuing stigma for
7
8
9
youthful offenses. The court found that because the collection and maintenance of juvenile
offender registration data was confidential, it serves an important remedial function and is not so
10
punitive in form and effect as to render it unconstitutional "punishment" under the state
11
constitution. However, in the case, In re Wentworth, 251 Mich. App. 560, 651 N.W.2d 773,
12
13
(2002), supra, the Michigan Court of Appeals reviewed a change in the sex offender registration
act which calls for the public dissemination of offender information without the safeguards noted
14
15
16
in Ayers, supra. The Wentworth court referred to this possible Eighth Amendment violation and
stated:
17
However, the recent amendment of the statute removing those confidentiality
safeguards raises questions about the continuing validity of our holding in Ayres.
Because respondent did not raise this issue on appeal, we will not address it in this
opinion.
18
19
20
In re Wentworth, supra, 651 N.W.2d at 779-780.
21
In a law review article, Does Community Notification for Sex Offenders violate the Eighth
22
23
Amendment’s Prohibition Against Cruel and Unusual Punishment: A focus on Vigilantism
24
Resulting from “Megan’s Law”, Alex B. Eyssen, 33 St Mary’s L. J. 101 (2001), the author notes
25
that:
26
27
28
Community notification is clearly an embodiment of a modern shame
punishment. Traditionally, shame punishments had the purpose to diminish an
offender’s standing in the community through some form of public humiliation.
The community shames an offender by beginning to harass and shun him,
20
1
2
3
4
5
6
ultimately barring the offender from participating in normal community life. Aside
from physical and life-threatening abuse, offenders undergo other forms of
harassment. In Trop v. Dulles, the Supreme Court held that Eighth Amendment
concerns arose regardless of physical maltreatment if the action led to “the total
destruction of the individual’s status in organized society.” As a result, offenders
often move from community to community following notification of their past
crimes. Police in one California town handed out flyers and continually pursued
one offender until he accepted a one-way plane ticket to another state. Having no
safe place to resort, many offenders divest themselves from society and become
virtual prisoners within their own homes. Whether it is public flogging or
community notification, shaming in any manifestation serves punitive purposes.
7
8
9
Id., at 125-126 (footnotes omitted).
In Roper v. Simmons, supra, 543 U.S. 551, 125 S. Ct. 1183 (2005), the United States
10
Supreme Court held that “[t]he Eighth and Fourteenth Amendments forbid imposition of the death
11
penalty on offenders who were under the age of 18 when their crimes were committed.” Id., at
12
13
578. The Simmons court reviewed the differences between adult and adolescent offenders and
found these differences render suspect any conclusion that a juvenile falls among the worst
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15
16
17
18
19
20
21
22
23
24
25
26
offenders. Yet, the Nevada Sex Offender Registration and Community Notification Law do
exactly that. Juvenile offenders are being equated with the worst of the adult offenders.
The reality that juveniles still struggle to define their identity means it is less
supportable to conclude that even a heinous crime committed by a juvenile is
evidence of irretrievably depraved character. From a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor's character deficiencies will be reformed. Indeed,
"[t]he relevance of youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals mature, the impetuousness
and recklessness that may dominate in younger years can subside." Johnson, supra,
at 368, 125 L. Ed. 2d 290, 113 S. Ct. 2658; see also Steinberg & Scott 1014 ("For
most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as
individual identity becomes settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal activities develop entrenched
patterns of problem behavior that persist into adulthood").
Id., at 570.
In Simmons it was noted by the United States Supreme Court that trained psychiatrists with
27
the advantage of clinical testing and observation refrain, despite diagnostic expertise, from
28
21
assessing any juvenile under 18 as having antisocial personality disorder and therefore states
1
2
should refrain from asking jurors to conclude whether to impose the death penalty. Id., at 573.
3
Similarly, trained psychiatrists refrain from diagnosing pedophilia in an adolescent. It is noted in
4
the Diagnostic and Statistical Manual of Mental Disorders (DSM) - IV-TR that an individual
5
diagnosed with pedophilia must be age 16 or older and at least 5 years older than the child. For
6
individuals in late adolescence, clinical judgment must be used; both the sexual maturity of the
7
8
9
10
11
12
13
child and the age difference must be taken into account. The manual notes that it is not
appropriate to include in this diagnosis a late adolescent who is involved in an on-going sexual
relationship with a 12 or 13 year old. DSM – IV –TR 302.2.
It is submitted that the legislature was misguided when it equated the failings of adolescent
sex offenders with those of adults and determined that adolescent sex offenders will be subject the
same wide spread community notification required of the most dangerous, high risk adult sex
14
15
offenders. In the instant case, the legislature did not take into account that teenagers’ “less-fixed
16
transitory personalities make them less culpable than adult offenders.” Roper v. Simmons, 543
17
U.S. 551, 570, 125 S. Ct. 1183 (2005). Adolescent sex offenders should not be punished and
18
branded to be as culpable as the worst adult sex offenders. Further, the juvenile as a reformed
19
adult, should not have to carry the burden of a continuing stigma for a youthful offense.
20
21
CLAIM FOR RELIEF
22
The subject minor requests this court grant declaratory relief by finding the statutory
23
changes in A. B. 579 to include adjudications of delinquencies in the definition of a “sex offender”
24
and a “offender of a crime against a child” is unconstitutional and therefore do not apply to the
25
subject minor and those individuals similarly situated. Further, if this Court finds the legislative
26
27
28
scheme in A. B. 579 does in fact pass constitutional muster, the subject minor respectfully requests
this Court stay or enjoin the effective date of the statutes’ application to delinquency adjudications
22
pending any judicial review in this case in order to preserve the status quo, and to avoid eminent
1
2
danger of irreparable harm.
CONCLUSION
3
4
5
Application community notification and registration as a sex offender and the other
restrictions on a juvenile delinquent is punitive, extreme and counterproductive. The effect is to
6
7
criminalize behavior, which the in the vast majority of cases the child will outgrow and/or respond
8
appropriately to treatment. These life long sanctions are imposed by a system that does not afford
9
all the protections that are the hallmark of the adult criminal justice system. The failure of the
10
legislature to promote public safety, coupled with the dangers of subjecting juvenile offenders to
11
12
lifetime registration and community notification, render the legislation completely irrational and
arbitrary. “If the constitutional conception of ‘equal protection of the laws’ means anything, it
13
14
must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot
15
constitute a legitimate governmental interest.” Department of Agriculture v. Moreno, 413 U.S.
16
528 (1973).
17
intolerable under the United States Constitution, and must be struck down.
18
Legislation that blindly and irrationally targets politically unpopular groups is
WHEREFORE, the subject minor submits that based upon the foregoing argument, the
19
Legislative Enactment A. B. 579 is unconstitutional on its face and as applied to the subject minor;
20
21
this Court must provide declaratory relief that A. B. 579 does not apply to the subject minor and
22
those individuals similarly situated that have been adjudicated delinquent an offense enumerated in
23
NRS 62F.200.
24
Dated this 13th day of March, 2008.
Respectfully submitted,
PHILIP J. KOHN
PUBLIC DEFENDER
25
26
27
28
.
By: _________________________
Susan D. Roske, Bar No. 1584
Deputy Public Defender
23
1
CERTIFICATE OF SERVICE
2
3
The undersigned hereby certifies that she is a person of such age and discretion as to be
competent to serve papers.
4
That on March ___, 2007, she served a copy of the subject minor’s SUBJECT MINOR’S
5
6
REPLY TO STATE’S OPPOSITION TO MOTION FOR A FINDING BY THE COURT THAT
7
THE LEGISLATIVE ENACTMENT A. B. 579 IS UNCONSTITUTIONAL AS APPLIED TO
8
ADJUDICATIONS OF DELINQUENCY by placing said copy in a prepaid envelope, and placed
9
in the United States Mail, addressed to the persons hereinafter named, at the address stated below.
10
Addressee:
11
12
13
14
15
16
Catherine Cortez Masto
State of Nevada Attorney General
100 N. Carson Street
Carson City, NV 89701-4717
That on March _____, 2008, she served a copy of the subject minor’s SUBJECT MINOR’S
REPLY TO STATE’S OPPOSITON TO MOTION FOR A FINDING BY THE COURT THAT
THE LEGISLATIVE ENACTMENT A. B. 579 IS UNCONSTITUTIONAL AS APPLIED TO
ADJUDICATIONS OF DELINQUENCY by placing said copy with the receptionist at the District
17
Attorney’s Office, Juvenile Division file, for the person hereinafter named, at the address stated
18
below.
19
20
21
Addressee:
Jonathan VanBoskerck, Esq.
Deputy District Attorney
601 North Pecos Road
Las Vegas, NV 89101
22
23
By: _________________________________
Employee of the Public Defender’s Office
24
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24