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PHILIP J. KOHN
PUBLIC DEFENDER
Nevada Bar No. 0556
Susan D. Roske
Chief Deputy Public Defender
Nevada Bar No. 1584
Jessica W. Murphy
Deputy Public Defender
Nevada Bar No. 8587
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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N. R.,
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Date of Birth: 12/12/1988
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CASE NO. J 304169
DEPT. NO. A
Date: February 15, 2008
Time: 9:00 AM
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SUBJECT MINOR’S 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, N. R., by and through his undersigned counsel, Jessica
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W. Murphy and Susan D. Roske, Deputy Public Defenders and and moves this Honorable Court to
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declare the application of A. B. 579 is unconstitutional as it applies to an adjudication of
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delinquency.
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This Motion is based upon the attached Memorandum of Points and Authorities, any
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additional Points and Authorities submitted to the Court, the papers and pleadings on file in the
instant case and upon such oral argument and evidence as the Court allows at the time set for
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hearing this Motion.
Dated this 28th day of December, 2007.
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PHILIP J. KOHN
PUBLIC DEFENDER
PHILIP J. KOHN
PUBLIC DEFENDER
By: _________________________
Jessica W. Murphy,
State Bar No. 8587
Deputy Public Defender
By: _________________________
Susan D. Roske,
State Bar No. 1584
Chief Deputy Public Defender
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NOTICE OF HEARING
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TO: STATE OF NEVADA, ATTORNEY GENERAL
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TO: CLARK COUNTY DISTRICT ATTORNEY, JUVENILE DIVISION
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Please take notice that the above captioned motion will be heard before the Juvenile Judge
on the 15th day of February 15, 2008, 2007 at the hour of 9:00 A.M. or as soon as may be heard
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Department A, Courtroom 18 of the Eighth Judicial District Court, Family Division.
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______________________________
Susan D. Roske
Chief Deputy Public Defender
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MEMORANDUM OF POINTS AND AUTHORITIES
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STATEMENT OF THE CASE
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On January 1, 2007 the Clark County District Attorney’s Office filed a delinquency
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petition against N.R., charging him with one count of sexual assault – victim under 14, eight
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counts of open or gross lewdness, and eight counts of lewdness with a minor under 14 years of
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age. The dates of the charged offenses ranged from March 2004 to December 2006. N.R.’s age
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range for the offenses was 15 years of age to 17 years of age. The victim was his cousin, who is
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approximately three and one-half years younger than Nicholas.
Pursuant to negotiations with the District Attorney’s Office, N.R. admitted to one count of
lewdness with a minor, to wit: “…by placing his mouth on the victim’s mouth and inserting his
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tongue into the victim’s mouth…”. A Sex Offense Specific Evaluation was filed with the court on
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March 6, 2007. The evaluation indicates that the subject minor was evaluated to be a low risk to
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re-offend. (Exhibit E). On April 24, 2007 N.R. was sentenced to the Division of Child and Family
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Services for correctional placement, where he remains today.
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STATEMENT OF FACTS
Although charges were not filed until N.R. was 18 years old, the alleged behavior allegedly
began when he was 15 years old. N.R. has an extensive mental health history, and has witnessed
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such tragic events as discovering his mother’s body after she committed suicide when he was just
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12 years of age. From age two until age ten, N.R. lived with his mother and step-father in
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Mississippi. N.R. was led to believe that his step-father was his biological father, and only learned
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that he was, in fact, only a former step-father when N.R. was 15 years old.
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N.R.’s mother and his step-father divorced when N.R. was 11 years old. N.R. spent the
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majority of the time with his mother, but did spend time with his step-father who N.R. still
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believed to be his father. After his mother’s death by suicide, N.R. lived with his step-father and
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his younger half-brother from the age of 13 through 15. In August 2003, at age 14, N.R. underwent
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a psychiatric evaluation at the request of his parents. N.R.’s DSM-IV diagnosis included an Axis I
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of Bipolar Affective Disorder, NOS and Oppositional Defiant Disorder; his Axis IV included the
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diagnosis of Great Psychosocial Stressors. Numerous reports indicate that N.R. was physically
and emotionally abused by his step-father while in his care.
At age 15, N.R. learned that Mr. Ross was not his natural father, but was instead his
mother’s former husband. Also at age 15 N.R. was sent away from Mr. Ross and his brother to
live in Las Vegas with his maternal aunt and her family. N.R. has not had any contact with his
step-father but attempts to maintain contact with his brother.
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In April 2004 N.R. was referred by his aunt and his psychologist for a Multidisciplinary
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Evaluation by the Clark County School District. The reason for the referral was that N.R. had
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experienced significant social-emotional abuse by his step-father for an extended period of time
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and it is unclear as to how it affected his educational progress. N.R. was found to be not eligible
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for special education as he did not demonstrate an educational disability.
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This incident occurred sometime between March and May 2004 when Nicholas was
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spending the night at his cousin’s home. According to police reports Nicholas would kiss his
cousin while the two were lying in bed watching television.
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In June 2004 in Las Vegas, N.R.’s aunt requested he undergo a second psychiatric
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evaluation. N.R.’s diagnoses included Hyperactivity- clinically significant; Aggression- clinically
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significant; Attention problems- at-risk; Social skills- at-risk; Bipolar Disorder; and Posttraumatic
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Stress Disorder. In December 2005, N.R. was committed to Copper Hills, a residential treatment
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center in Utah, by his aunt and uncle. N.R. spent approximately six weeks at Copper Hills and
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returned to his aunt’s house upon discharge in January 2006.
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At some point N.R.’s aunt sent him to his grandparent’s home in Las Vegas because his
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behavior in her home was unmanageable. While living with his grandparents, Nick maintained
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employment at Pizza Hut, Starbucks, and Walgreens. N.R. was employed full-time at Walgreens
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at the time of his DCFS commitment. N.R. remained with his grandparents until his arrest for the
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instant offenses on January 18, 2007. N.R. remained detained for approximately one week, and
was released on Electric Monitoring back to his grandparents. N.R. remained out of custody until
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his commitment to DCFS on April 24, 2007. As part of the Report and Disposition N.R.
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underwent a Sex Offense Specific Evaluation, and the evaluating therapist concluded that N.R.
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was a low risk to re-offend. (See, Exhibit E). The Court ordered N.R. to submit to a psychiatric
evaluation to determine if he was a sociopath and if he presents a risk to the community. The
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evaluators concluded that N.R. does not fulfill the criteria for psychopathy or sociopathy. The
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evaluators recommended that N.R. receive intensive outpatient psychotherapy on a regular basis
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and to continue his care with his psychiatrist for medication management.
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On April 24, 2007 N.R. was sentenced to the Division of Child and Family Services for
correctional placement. He is currently housed at the Nevada Youth Training Center in Elko,
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Nevada.
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ARGUMENT
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INTRODUCTION
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This motion is filed in conjunction with 20 similar cases of juveniles impacted by this
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legislation. This group represents a small portion of individuals who are similarly situated and in
need of relief. Because the issues are similar and related, the following cases are being
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simultaneously filed and raise common issues:
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J88076; J297294; J299548; J89247; J76110; J299770; J302182; J297311; J296081; J302158
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J303903; J91926; J80382-2; J302446; J297246; J304169; J306339; J294797; J48774; J295148;
J297277.
This Court has jurisdiction to reach a determination in these matters. Each case involves an
adjudication of delinquency for a sex offense arising from this court. NRS 62A.030 defines a
“child” as a person who is less than 18 years of age; a person who is less than 21 years of age and
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subject to the jurisdiction of the juvenile court; or a person who is otherwise subject to the
jurisdiction of the juvenile court as a juvenile sex offender. Further, NRS 62F.220(2) provides that
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the juvenile court may not terminate its jurisdiction concerning the child for the purposes of
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carrying out the juvenile sex offender provisions in NRS 62F until the child is no longer subject to
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registration and community notification as a juvenile sex offender A. B. 579, section 47(2).
The Nevada Supreme Court reviewed the constitutionality of a juvenile sex offender statute
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in the case styled In re T. R., 119 Nev. 646, 80 P.3d 1276 (2003). T.R. objected to a disposition order
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requiring him to submit to a hearing when he turns 21 (he was 14 at the time) to determine whether
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he must register as an adult sex offender. The Nevada Supreme Court noted that “T.R. seeks pre-
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enforcement review of NRS 62.590; thus, ripeness, rather than standing, is our focus.” Reviewing
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the test for ripeness, the Court in T.R. cited Smith v. Wisconsin, 23 F.3d 1134 (7th Cir. 1994). In
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Smith v. Wisconsin the Circuit Court of Appeals discussed the fact that the doctrines of standing
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and ripeness are closely related.
It is sometimes argued that standing is about who can sue while
ripeness is about when they can sue, though it is of course true that if
no injury has occurred, the plaintiff can be told either that she cannot
sue, or that she cannot sue yet. See Gene R. Nichol, Jr., Ripeness and
the Constitution, 54 U. Chi. L. Rev. 153, 173 (1987) (noting that the
Supreme Court "appears to have used the two lines inquiry
interchangeably").
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The Court in Smith v. Wisconsin, like the court in the instant matter, considered whether the party
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could seek pre-enforcement review of a statute or regulation.
For ripeness purposes this determination appears to turn on two
criteria: (1) the hardship to the plaintiff of denying pre-enforcement
review and (2) the fitness of the issues for judicial review. While the
interaction of these relationships is unclear, "it appears that preenforcement review is possible only if there is both hardship to its
denial and an adequate factual record." Chemerinsky, Federal
Jurisdiction, § 2.4.
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Id., at 1141.
The Court in T.R., supra, applying the above test, held:
Moreover, delay will harm T.R., as he is unsure how the statute
applies to his current and future life choices; those choices could
well influence the district court's decision in any hearing under NRS
62.590. Nothing is gained from deferring review until T.R. is
twenty-one. As for the issues' suitability for review, the record is
sufficiently developed to allow us to consider the legal questions
before us. Applying these factors, we conclude that this case is ripe
for our review.
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Id., at 651-652.
The Nevada Supreme Court, in In re T. R., supra, noted that the future application of the
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statute was certain and cited Chang v. United States, 327 F.3d 911(9th Cir. 2003), which
recognized that an issue is ripe for review when it is inevitable that a regulation will be enforced
against a plaintiff. In Chang, supra, the Ninth Circuit Court of Appeals stated,
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This court "does not require Damocles's sword to fall before we
recognize the realistic danger of sustaining a direct injury." Id. at
1171. In Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431,
1436 (9th Cir. 1996), this court expressly adopted the "firm
prediction" rule from Justice O'Connor's Catholic Social Services
concurrence, which eliminates the need to await an inevitable
application of a regulation to a plaintiff before determining a claim
to be justiciable.
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Id. at 921.
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Here, the subject minor, as did T. R., seeks pre-enforcement review of the legislation.
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Here, as was the case in T.R., supra, “nothing would be gained by deferring review” until the
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legislation is effective. On July 1, 2008, the subject minor will be subject to registration and
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community notification on the adult sex offender website. The subject minor will suffer
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irreparable harm and the court “does not require Damocles’s sword to fall” before providing the
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subject minor relief. Further, the issue is fit for judicial review. The legislation has been enacted
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and will take effect on July 1, 2008.
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NEVADA’S LEGAL FRAMEWORK RELEVANT TO JUVENILE SEX OFFENDERS
Under current law, juveniles adjudicated delinquent for certain sex offenses1 (juvenile sex
offenders) are subject to community notification procedures and other restrictions. The linchpin of
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the current sex offender scheme is an individual assessment. Presently, sex offenders, including
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juvenile sex offenders, are individually assessed to determine their level of risk of recidivism and
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placed under the supervision of a parole or probation officer for not less than three years. NRS
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62F.220. The risk of recidivism determines the extent of community notification.2 Similarly, the
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juvenile court has the power to release a juvenile sex offender from community notification as a
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juvenile sex offender if the court determines that the juvenile sex offender is not likely to re-
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offend. NRS 62F.240. If the child is not relieved of community notification requirements before
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NRS 62F.200 presently defines sexual offense as sexual assault, battery with intent to commit sexual
assault, an offense involving pornography and a minor, lewdness with a child and an attempt to commit one of these
offenses.
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Community Notification and registration for juveniles is presently addressed in NRS 62F.220-260,
inclusive. Under the current law, community notification and registration as a juvenile sex offender only applies while
the child is a ward of the court and on probation or parole. The child and his parent or guardian must inform his
probation or parole officer of a change of address within 48 hours after the change of address. The probation or parole
officer is required to notify the local law enforcement agency in whose jurisdiction the child resides that the child is
adjudicated of a juvenile sex offense and is subject to community notification as a juvenile sex offender. Tier one
offenders are not subject to widespread community notification because they pose a low risk of future dangerousness.
By contrast, tier three offenders are subject to more far reaching community notification because they pose a higher
level of risk to the community.
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he or she reaches the age of 21, the juvenile court must hold a hearing to determine whether the
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child should be deemed an adult sex offender for the purposes of registration and community
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notification pursuant to NRS 179D.350 to NRS 179D. 800, inclusive. NRS 62F.250 (1). If the
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court determines that the child has been rehabilitated to the satisfaction of the juvenile court and
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that he or she is not likely to pose a threat to the safety of others, the court must relieve the juvenile
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sex offender of being subject to community notification. NRS 62F.250 (2). Conversely, if the
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court finds that he or she has not been rehabilitated to the satisfaction of the juvenile court or is
likely to pose a threat to the safety of others, the juvenile court must deem the juvenile sex
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offender to be an adult sex offender for the purposes of registration and community notification.
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NRS 62F.250 (3).
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This landscape is all about to change drastically. Governor Gibbons signed into law
Assembly Bill 579, hereinafter “A. B. 579,” on June 13, 2007. A. B. 579 goes into effect on July
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1, 2008. The legislation radically intensifies the consequences of an adjudication of delinquency
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for sex offenses. While as discussed at length below, the law is unclear; it appears that A. B. 579
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mandates that anyone – since July of 1956 – who was or is adjudicated delinquent for the
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commission of sex offenses after their fourteenth birthday will be subject to lifetime supervision,
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registration, community notification and other restrictions as sex offenders (collectively, “sex
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offender restrictions”) based solely on the crimes committed rather than any actual assessed risk of
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recidivism of any individual juvenile sex offender. As detailed below, some juvenile sex offenders
will be subject to sex offender restrictions for the rest of their lives starting in July, 2008.3
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Sex offender restrictions are imposed on persons convicted of certain crimes; A. B. 579
defines “convicted” to include an adjudication of delinquency for a sexual offense that is listed in
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The term “juvenile sex offenders” includes persons who were adjudicated delinquent for the commission of certain
crimes but who are now adults.
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NRS 62F.2004 if the offender was 14 years of age or older at the time of the offense. (See, A. B.
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579, Sec. 33 and Sec. 46). Thus, children adjudicated delinquent for these enumerated sexual
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offenses will be subject to lifetime adult supervision, community notification and registration
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requirements.
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Section 56 of A. B. 579 repeals the existing system of an individualized assessment system
with a rigid categorical approach. All sex offenders are automatically placed into “Tier I,” “Tier
II” or “Tier III” depending on the statute under which the individual is adjudicated or convicted.
All offenders will be subject to widespread community notification. All juvenile offenders will
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automatically be either Tier II or Tier III offenders under the new system. As explained above, if a
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juvenile is adjudicated delinquent of any of the crimes listed below, he or she will be, under the
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law, classified as a sex offender (See A. B. 579, Sec. 20(b)):
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(a)
(b)
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(d)
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Sexual assault pursuant to NRS 200.366;
Battery with intent to commit sexual assault pursuant to NRS 200.400;
Lewdness with a child pursuant to NRS 201.230; or
An attempt or conspiracy to commit an offense listed in this section.
Each of these crimes is classified as a felony offense if committed by an adult. Section 23 of A.B.
579 provides that a “Tier II offender” means an offender convicted of a crime against a child or a
sex offender, other than a Tier III offender, whose crime against a child is punishable by
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imprisonment for more than 1 year (i.e. a felony offense). Thus, all juvenile sex offenders will be
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at least Tier II offenders. Some juvenile sex offenders will become Tier III offenders and face
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even more extreme sex offender restrictions. Section 24 of A. B. 579 provides that individuals
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convicted of Sexual Assault pursuant to NRS 200.336, Battery with intent to commit Sexual
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Assault pursuant to subsection 4 of NRS 200.400 or an Attempt or Conspiracy to commit these
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offenses (among other offenses) will be Tier III offenders. Thus, two of the three offenses listed in
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NRS 62F.200 are Tier III offenses.
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NRS 62F.200 is modified to define sexual offenses as sexual assault, battery with intent to commit sexual assault,
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It is noteworthy that the inclusion of juvenile sex offenders in the definition of a “sex
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offender” is retroactive to July 1, 1956. Thus, the legislation will affect not only the children in
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the court system today, but also former offenders who have complied with the requirements of the
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law and have been determined to be rehabilitated. Many adults in this community, who have been
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rehabilitated and moved on to lead productive and successful lives, will suddenly be required
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under the law to be subject to lifetime supervision, community notification and registration.
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The following are some of the sex offender restrictions that will apply to juvenile offenders
beginning in July of 2008:
 The name, social security number, date of birth and any other information
identifying the child must be submitted to the Central Repository for Nevada
Records of Criminal History; and a biological specimen must be obtained for
genetic markers. A. B. 579, section 1.
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 In addition to other penalties, a special sentence of lifetime supervision must be
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imposed. A. B. 579, section 6. Lifetime supervision is deemed a form of parole
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with numerous conditions, a violation of which may be charged as a misdemeanor
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or felony, depending on the conduct. NRS 213.1243.
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 If granted probation, numerous restraints are set out which require a probation
officer’s prior approval including, but not limited to, where the juvenile sex
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offender can reside, work, and go to school, and whether the juvenile sex offender
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can associate with children under 18, (even if the juvenile sex offender is under
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eighteen him or herself). A. B. 579, section 7.
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 He or she will not be eligible to seal a record of a sexual offense. A. B. 579, section
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lewdness with a child and an attempt or conspiracy to commit these offenses.
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 The Central Repository will maintain a community notification website to provide
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the public with access to information contained in the statewide registry which will
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include the offender’s name, a complete description and current photograph, his or
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her home address, place of employment or school, the license plate and description
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of his or her motor vehicle, and more. A. B. 579 Section 13.
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 If any of this information changes, he or she must appear in person, not later than 3
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business days, and provide all information concerning such change to the
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appropriate local law enforcement agency. A. B. 579, section 28.
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 The offender must appear in person to update this information every 90 days (Tier
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III) or 180 days (Tier II) and provide a current photograph and set of finger and
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palm prints. A.B. 579, section 40.
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The recent enactment of Senate Bill 471 (S. B. 471) adds additional insult to injury as Tier
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III offenders, convicted of crime against a child under 14, are now subject to additional
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restrictions. (See S. B. 471, approved by the Governor on June 14, 2007).
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effective in October of 2007, and once A. B. 579 becomes effective in July 2008, will apply to
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juvenile sex offenders. The law is vague and it is unclear whether it was intended to apply
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S. B. 471 became
retroactively. S. B. 471 prohibits Tier III offenders from: 1) residing within 1000 feet of certain
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locations frequented primarily by children; and 2) knowingly being within 500 feet of public
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schools, video arcades, athletic fields, movie theatres or other facilities designed primarily for use
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by children. Further, the state will have the authority to place him or her on GPS electronic
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monitoring for the rest of his or her life. Thus, juvenile sex offenders who are still children (child
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juvenile sex offender) will no longer be able to attend school or engage in many of the activities
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that would be considered normal and healthy for children.5 The parents of these children will be
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Ironically, the 2007 legislative session saw the enactment of A. B. 212 which increases the age of compulsory school
attendance from age 17 to age 18.
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forced to abandon their homes so that they do not live within 1000 feet of schools or parks, and
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other locations where children congregate. Similarly, child juvenile sex offenders may not be able
to live with their own brothers and sisters.
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JUVENILE OFFENDERS
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The fundamental philosophy of the juvenile court laws is that
a delinquent child is to be considered and treated not as a criminal
but as a person requiring care, education and protection. He is not
thought of as "a bad man who should be punished, but as an erring or
sick child who needs help." Thus, the primary function of juvenile
courts, properly considered, is not conviction or punishment for
crime, but crime prevention and delinquency rehabilitation. It would
be a serious breach of public faith, therefore, to permit these
informal and presumably beneficent procedures to become the basis
for criminal records, which could be used to harass a person
throughout his life. There is no more reason for permitting their use
for such a purpose, than there would be to pry into school records or
to compile family and community recollections concerning youthful
indiscretions of persons who were fortunate enough to avoid the
juvenile court.
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Thomas v. United States, 74 App. D.C. 167, 121 F.2d 905, 907-908 (1941) (footnotes and citations
omitted). See also, NRS 62A.360, 62E.010.
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While A. B. 579 purports to treat juvenile sex offenders the same as other sex offenders,
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the law has long recognized that children are less culpable than adults. Forty years ago the United
States Supreme Court decided the landmark decision In re Gault, 387 U.S. 1 (1967). In Gault, the
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Supreme Court explicitly extended federal constitutional protections to children in juvenile
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delinquency proceedings. The Court in Gault determined that a child’s interests in delinquency
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proceedings are not adequately protected without the adherence to due process principles.6
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However, the Court did not extend all of the procedural rights guaranteed to adults accused of
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committing a crime to juvenile delinquency actions. In McKeiver v. Pennsylvania, 403 U.S. 528,
533 (1971), the United States Supreme Court rejected the idea that juveniles are deserving of all
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Since A. B. 579 is retroactive to July 1, 1956, individual’s adjudicated delinquent for these offense prior to Gault
which was decided in 1967 will fall victim to these draconian laws.
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the procedural rights guaranteed to adults accused of committing a crime. McKeiver instituted the
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“fundamental fairness” approach to the constitutional rights of juveniles. The United States
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Supreme Court in Schall v. Martin, 467 U.S. 253, 264-274 (1984), followed the McKeiver
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reasoning and upheld preventive preadjudication secure confinement of juveniles under the
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“fundamental fairness” test, relying on the state’s parens patriae interest in children’s welfare.
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In Bellotti v. Baird, 443 U.S. 622 (1979), the United States Supreme Court articulated three
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specific factors that, when applicable, warrant differential analysis of the constitutional rights of
minors and adults: (1) the peculiar vulnerability of children; (2) their inability to make critical
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decisions in an informed, mature manner; and (3) the importance of the parental role in child
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rearing.
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In Bellotti, the United States Supreme Court noted that states validly may limit the freedom
of children to choose for themselves in the making of important, affirmative choices with
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potentially serious consequences. These rulings have been grounded in the recognition that, during
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the formative years of childhood and adolescence, minors often lack the experience, perspective,
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and judgment to recognize and avoid choices that could be detrimental to them. Bellotti v. Baird,
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supra, at 635.
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In Thompson v. Oklahoma, 487 U.S. 815 (1988), the United States Supreme Court
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determined that our standards of decency do not permit the execution of any offender under the
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age of 16 at the time of the crime. The Thompson Court stressed that “[t]he reasons why juveniles
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are not trusted with the privileges and responsibilities of an adult also explain why their
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irresponsible conduct is not as morally reprehensible as that of an adult.” Id. at 835.
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The New York Court of Appeals, in People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 350
N.E.2d 906 (1976) noted that:
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Our society recognizes that juveniles in general are in the earlier
stages of their emotional growth, that their intellectual development
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is incomplete, that they have had only limited practical experience,
and that their value systems have not yet been clearly identified or
firmly adopted. In consequence of what might be characterized as
this immaturity, juveniles are not held to the same standard of
individual responsibility for their conduct as are adult members of
our society.
1
2
3
4
5
6
Id., at 687.
Science is confirming what the Juvenile Justice System has long recognized, that children
7
are different than adults and the brain of an adolescent is still undergoing physical development.
8
The Coalition for Juvenile Justice prepared Childhood on Trial - The Failure of Trying and
9
Sentencing Youth in the Adult Criminal System (2005) with a grant from the John D. and
10
Catherine T. MacArthur Foundation. The report addressed the emerging research on adolescent
11
12
13
14
15
16
17
18
19
20
development.
Adolescents are not miniature grown-ups. They differ from adults in
critical physiological and psychological ways. Certain parts of the
brain—particularly the frontal lobe and the cable of nerves
connecting both sides of the brain—are often not fully formed,
which can limit cognitive ability. This is also the part of the brain
that has to do with making good judgments, moral and ethical
decisions, and reining in impulsive behavior. New research
increasingly demonstrates such differences. For instance, the way in
which a common mental illness, depression, manifests in the brains
of teenagers is entirely different from the way in which it manifest in
adults, because throughout adolescence young people are developing
new neurons and adults are not.
Id., at 36.
The American Medical Association states in their Amicus Brief to the United States
21
22
Supreme Court in case of Roper v. Simmons, infra,
23
26
[t]he adolescent’s mind works differently from ours. Parents know
it. This Court has said it. Legislatures have presumed it for decades
or more. And now, new scientific evidence sheds light on the
differences.
27
Amicus Brief on behalf of the American Medical Association, et. al, Roper v. Simmons, at page 2
28
(Supreme Court of the United States, No. 03-633). The United States Supreme Court, in Roper v.
24
25
15
Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), addressed the differences
1
2
between juvenile and adult offenders in ruling the Eighth and Fourteenth Amendments forbid
3
imposition of the death penalty on offenders who were under the age of 18 when their crimes were
4
committed. The Court in Roper based part of its death penalty decision on noted developmental
5
differences between juveniles and adults. In extending Eighth Amendment protection to 16 and 17
6
year old juvenile offenders, the Court held that youths’ underdeveloped sense of responsibility and
7
8
9
subsequent lack of maturity, vulnerability to peer pressure, and less-fixed transitory personalities
make them less culpable than adult offenders. Roper, supra, 543 U.S. at pages 569-570. The
10
United States Supreme Court has drawn a bright line that youth culpability is different than adult
11
culpability because of adolescent developmental differences. The Court made it clear that youth
12
13
itself is a mitigating factor and that youthful offenders are less culpable than adult offenders. Id.
“From a moral standpoint it would be misguided to equate the failings of a minor with those of an
14
15
16
adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id.,
543 U.S. at 570.
17
Given the differences between juvenile and adults, A. B. 579 should not be applied to
18
include juvenile sex offenders. A.B. 579 completely ignores the well-established principle that
19
juvenile delinquents are not to be treated the same as adults convicted of the same crime. It is
20
noteworthy that in the analysis of fundamental rights and differentiating between juveniles and
21
22
adults, the courts take into consideration the biological immaturity of youth. The law recognizes
23
that juveniles are not held to the same standard of individual responsibility as an adult and as such,
24
an analysis of their fundamental rights must recognize their limitations and give them greater
25
protection.
26
27
One can describe this retroactive application of sex offender restrictions to juvenile sex
offenders akin to “bait and switch.” The system treats juvenile delinquency cases informally. NRS
28
16
62D.010. The courts temper their decision making with an acknowledgment that through the
1
2
court’s involvement, “services can be provided” to families which would not be available to them
3
otherwise. The child and family are advised that juvenile adjudications are not criminal, that they
4
are not a matter of public record, that jurisdiction of the juvenile court cannot extend beyond ones
5
21st birthday, and that the juvenile court has a parens patriae interest in the child’s welfare.
6
7
8
9
Effective July 1, 2008, this will no longer be the case. The legislature’s action has created this
“switch.” Individuals who have successfully completed the requirements of the juvenile court and
have put the past behind them, will now, for the first time, be required to submit to lifetime
10
supervision, required to appear in person to register every 90 (Tier III) or 180 (Tier II) days; be
11
subjected to having their personal information placed on the internet and have severe limitations
12
placed upon where they can live, where they can “be” and with whom they can associate.
13
Experts in the field of treating adolescent sex offenders attest that most youthful offenders
14
15
can be fully treated. See Affidavit of Dr. Rogers, attached hereto as Exhibit “A”. Dr. Rogers
16
explains that “MOST adolescents who commit a sexual offense do so because of mental illness
17
(which is treatable), family chaos (which is both preventable and treatable), mental retardation or
18
other pervasive developmental disorder (which is manageable with education and therapeutic
19
20
placements), abuse-reactive behavior from prior victimization (which is treatable) and a simple
miss-match between the child’s immature thinking ability and their bodily hormonal urges. This is
21
22
23
also treatable and temporary.” Id. (emphasis in original).
Our society’s failure to consider the developmental status of adolescent sex offenders is
24
discussed in An American Travesty, Franklin E. Zimring, University of Chicago Press (2004).
25
Zimring asserts that current policy toward young sex offenders is rarely based on fact and is often
26
the result of false judgments. Assumptions about juvenile sex offenders in current legislation and
27
debate are often based only on the motives and inclinations of adult offenders.
28
17
1
2
3
4
5
6
7
8
9
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.
Id, at page 159.
10
11
12
13
14
15
16
17
18
LEGAL ARGUMENT
I.
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.
The United States Constitution, Amendment V provides that “[n]o person shall . . . be denied
life, liberty, or property, without due process of law.”
The United States Constitution also
19
20
guarantees that no state shall deprive “any person of life, liberty, or property without due process
21
of law; nor deny to any person within its jurisdiction the equal protection of the laws.” United
22
States Constitution, Amendment XIV. ” See also, Nevada Constitution Article 1, §8, clause 5.
23
24
25
26
27
28
A. BECAUSE JUVENILE SEX OFFENDERS ARE DEPRIVED
OF THE PROTECTIONS PROVIDED TO ADULT
OFFENDERS, IT IS UNCONSTITUTIONAL TO TREAT
THEM LIKE OTHER SEX OFFENDERS
Someone once posed the following hypothetical question to
Abraham Lincoln. ‘If you call a tail a leg, how many legs does a dog
have?’ Lincoln answered, ‘Four. Calling a tail a leg doesn’t make it
one.’ In a similar vein, calling delinquency proceedings at which
18
a juvenile could be sentenced to multiple years in the
Department of Corrections noncriminal doesn’t make it so.
1
2
3
In Re. G.O., 191 Ill.2d 37, 727 N.E.2d 1003 (2000) (Heiple, J., dissenting) (emphasis
added). As reflected in In re Gault, McKeiver v. Pennsylvania, and Schall v. Martin
4
5
discussed above, juvenile delinquency proceedings have long been deemed noncriminal
6
and the juvenile justice system does not provide the same procedural protections as the
7
adult criminal system. For example, NRS 62D.010 (1) (c) provides that juvenile
8
delinquency proceedings “[m]ust be heard without a jury.” Subject minor submits that
9
because juveniles charged with sex offenses are not provided the full protection of the
10
constitution, it is improper to allow for the full gamut of sex offender restrictions to be
11
12
applied to them. A. B. 579, in effect, will change the juvenile delinquency system to an
13
adversarial criminal justice system, engaging in the criminal adjudications of juveniles,
14
without the benefit of a jury trial, as required by both the Nevada Constitution, Art. I, § 3
15
and United States Constitution, Art. III § 2; Amendment VI.
16
More than thirty five years ago, the United States Supreme Court, in McKeiver v.
17
18
19
Pennsylvania, 403 U.S. 528, 551, 91 S.Ct. 1976, 1989 (1971), held that the formalities of
the criminal adjudicative process should not be superimposed upon the juvenile court
20
system in refusing to extend to juveniles a constitutional right to jury trials. In his
21
Concurring Opinion, Mr. Justice White explained why courts treat juveniles differently
22
than adults:
23
24
25
26
27
28
For the most part, the juvenile justice system rests on more
deterministic assumptions. Reprehensible acts by juveniles are not
deemed the consequence of mature and malevolent choice but of
environmental pressures (or lack of them) or of other forces beyond
their control. Hence the state legislative judgment not to stigmatize
the juvenile delinquent by branding him a criminal; his conduct is
not deemed so blameworthy that punishment is required to deter him
or others. Coercive measures, where employed, are considered
neither retribution nor punishment. Supervision or confinement is
19
1
2
3
4
5
6
7
8
9
10
aimed at rehabilitation, not at convincing the juvenile of his error
simply by imposing pains and penalties. Nor is the purpose to make
the juvenile delinquent an object lesson for others, whatever his own
merits or demerits may be. A typical disposition in the juvenile court
where delinquency is established may authorize confinement until
age 21, but it will last no longer and within that period will last only
so long as his behavior demonstrates that he remains an unacceptable
risk if returned to his family. Nor is the authorization for custody
until 21 any measure of the seriousness of the particular act that the
juvenile has performed.
Id. at 551-552 (MR. JUSTICE WHITE, concurring).
Subsequent to McKeiver, the Supreme Court has re-iterated that the juvenile justice system
is a non-adversarial system that does not require all of the rigid formalities and trappings of the
adult criminal justice system. As noted above, the courts have relied on the state’s parens patriae
11
12
13
14
15
16
interest in children’s welfare in interpreting the rights of children in delinquency actions:
The fundamental philosophy of the juvenile court laws is that a
delinquent child is to be considered and treated not as a criminal but
as a person requiring care, education and protection. He is not
thought of as ‘a bad man who should be punished, but as an erring or
sick child who needs help.’ Thus, the primary function of juvenile
courts, properly considered, is not conviction or punishment for
crime, but crime prevention and delinquency rehabilitation.
17
18
19
Thomas v. United States, supra, 74 App. D.C. 167, 121 F.2d 905, 907-908 (1941).
Since the enactment of McKeiver, Nevada statutes applicable in juvenile delinquency
20
actions have changed in obvious and dramatic ways. Recent legislation has vastly altered the
21
landscape. The freedom from lifetime stigmatization afforded juvenile offenders has been
22
obliterated. This, of course, runs headlong into the long standing philosophical underpinning of
23
the juvenile justice system. All of the rationale for diminished procedural rights, based upon the
24
25
premise that juvenile adjudications have a limited impact, no longer is the case. The fact that A. B.
26
579 will impact many individuals who have aged out of the delinquency system and gone on with
27
their lives only heightens the injustice of this legislation. Calling delinquency proceedings
28
noncriminal, for these juvenile sex offenders, does not make it so. These proceedings now result
20
in adjudications with widespread impact, the adjudications will be made part of public record, they
1
2
will result lifetime supervision and stigmatization as well as lifetime restraints on liberties.
3
The United States and Nevada Constitutions grants persons the right to trial by jury when
4
the individual is charged with a serious criminal offense. Nevada Constitution, Art. I. §3; United
5
States Constitution, Art. III § 2, Amendment VI. These constitutional provisions reflect the "deep
6
commitment of the nation to the right of jury trial in serious criminal cases as a defense against
7
8
9
10
11
12
13
arbitrary law enforcement." Duncan v. Louisiana, 391 U.S. 145, 156-57, 88 S. Ct. 1444, 1451
(1968).
AB 579 equates persons “convicted” and “adjudicated delinquent” for the application of
requirements, restrictions and sanctions. The legislative decision to equate an adjudication of
delinquency with a conviction in NRS Chapter 179D, clearly establishes that juveniles charged
with violating these provisions are subject to criminal prosecution, resulting in criminal
14
15
convictions and imprisonment. There is no distinction in A. B. 579 between juvenile delinquents
16
and adult criminals other than the protections provided to them at the original, triggering
17
proceeding. Individuals adjudicated delinquent become exposed to these requirements, restrictions
18
and possible prosecution and imprisonment for a violation, without the right to a trial by jury and
19
other procedural rights on the underlying offense. There is no rational basis for giving juvenile
20
sex offenders less protection than similarly situated adults who have been accorded the right to a
21
22
jury trial. Nor is there a rational basis for holding juveniles to the same consequences as adults
23
without providing the same fundamental protections as adults. The State cannot show a legitimate
24
interest in providing greater protection against injustice to adults while leaving similarly situated
25
children vulnerable. Therefore, this Court should find that A. B. 579, as it applies to adjudications
26
of delinquency, is unconstitutional because children adjudicated in the juvenile system are
27
deprived of all of the same procedural protections afforded to adults in the criminal justice system.
28
21
1
2
B. SUBSTANTIVE DUE PROCESS
3
“‘Substantive Due Process guarantees that no person shall be deprived of life, liberty or
4
property for arbitrary reasons’ . . . The Due Process Clause of the Fourteenth Amendment protects
5
those liberty interests that are deemed fundamental and are ‘deeply rooted in this Nation’s history
6
and tradition.’” In re L.S., 120 Nev. 157, 87 P.3d 521 (2004) (citations omitted). If legislation
7
8
9
limits a fundamental right a Court must carefully scrutinize the underlying factual basis for the
legislation. As compared to a procedural due process analysis, courts are concerned with the
10
constitutionality of the underlying rule rather than the fairness of the process by which the
11
government applies the rule to an individual. Where a law limits a fundamental right, the law is
12
reviewed under a “strict scrutiny” standard. Nunez ex rel. Nunez v. City of San Diego, 114 F.3d
13
935 (9th Cir. 1997). Under this standard, the law must be necessary to promote a compelling
14
15
16
government interest. Id. A.B. 579 impinges upon fundamental rights and should, therefore, be
subject to strict scrutiny.
17
It is noteworthy that in the analysis of fundamental rights and differentiating between
18
juveniles and adults, the courts take into consideration the biological immaturity of youth. The law
19
recognizes that juveniles are not held to the same standard of individual responsibility as an adult
20
and as such, an analysis of their fundamental rights must recognize their limitations and give them
21
22
greater protection. This rationale is turned upside down where, as here, the standard of adult
23
responsibility will now be imposed on individuals for conduct which occurred when they were
24
children.
25
26
27
28
22
The Sex Offender Restrictions unconstitutionally restricts individuals’ right of free
1
2
movement:
3
The Ninth Circuit Court of Appeals addressed citizens’ fundamental right of free
4
movement in addressing a juvenile curfew ordinance in Nunez, supra. The Court of Appeals
5
reviewed whether the right to free movement is a fundamental right applicable to minors (despite
6
7
8
9
10
the fact that minors are traditionally treated differently than adults). 7 The Nunez Court held that a
lesser degree of scrutiny is not appropriate to review burdens on minors’ fundamental rights. The
Nunez Court held the curfew ordinance did not survive strict scrutiny and was therefore
unconstitutional.
11
Constitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority.
Minors, as well as adults, are protected by the Constitution and
possess constitutional rights. The Court indeed, however, long has
recognized that the State has somewhat broader authority to regulate
the activities of children than of adults. It remains, then, to examine
whether there is any significant state interest in [the effect of the
statute] that is not present in the case of an adult.
12
13
14
15
16
Nunez ex rel. Nunez v. City of San Diego, supra, 114 F.3d at 945.
17
As described above, the sex offender restrictions will prohibit Tier III sex offenders,
18
19
including Juvenile Sex Offenders, from:
20
a) “knowingly [being] within 500 feet of any place, or if the place is a structure, within
21
500 feet of the actual structure, that is designed primarily for use by or for children, including,
22
without limitation, a public or private school, a school bus stop, a center or facility that provides
23
day care services, a video arcade, an amusement park, a playground, a par, an athletic field or a
24
25
26
facility for youth sports, or a motion picture theater.” NRS 176A.410 (1); NRS 176A.410 (1) (m)
as amended by S. B. 471, Sec. 2 (emphasis added); and
27
7
28
It must be noted that most of the individuals who have been adjudicated delinquent for the commission of a sex
offense and impacted by this legislation are no longer juveniles and therefore legislation affecting fundamental rights
can not be subject to lower scrutiny.
23
b) “[residing] at a location [that is located] within 1,000 feet of any place, or if the place is
1
2
a structure, within a 1,000 feet of the actual structure, that is designed primarily for use by or for
3
children, including, without limitation, a public or private school, a school bus stop, a center or
4
facility that provides day care services, a video arcade, an amusement park, a playground, a park,
5
an athletic field or a facility for youth sports, or a motion picture theater.” NRS 176A.410 (2), as
6
amended by S. B. 471, Sec. 2.
7
8
9
10
11
12
13
14
15
16
17
18
19
While other circuits are split as to whether the right to intrastate travel is a protected
fundamental right, the Ninth Circuit has made clear that citizens do have a right to free movement
within a state as well as between states:
Citizens have a fundamental right of free movement,
“historically part of the amenities of life as we have known them.”
Papachristou, 405 U.S. at 164; see also United States v. Wheeler,
254 U.S. 281, 293, 65 L.Ed. 270, 41 S.Ct. 133 (1920) (“In all the
states from the beginning down to the adoption of the Articles of
Confederation the citizens thereof possessed the fundamental right,
inherent in citizens of all free governments, peacefully to dwell
within the limits of their respective states, to move at will from place
to place therein, and to have free ingress thereto and egress
therefrom . . .”). Similarly, the Constitution guarantees the
fundamental right to interstate travel. Shapiro v. Thompson, 394
U.S. 618, 629, 22 L.Ed.2d 600, 89 S.Ct. 1322 (1969).
Nunez ex rel. Nunez v. City of San Diego, supra, 114 F.3d 935, 944 (9th Cir. 1997)
(footnote omitted).
20
In Nunez, supra, the Ninth Circuit Court of Appeals, reviewed a juvenile curfew ordinance
21
22
which deemed it unlawful to “loiter, idle, wander, stroll or play in or upon the public streets,
23
highways, roads, alleys, parks, playgrounds, wharves, docks, or other public grounds, public
24
places, between the hours of ten o’clock P.M. and daylight immediately following.” Id., at 938.
25
The Nunez Court rejected an argument that the rights to free movement and travel are “not
26
fundamental rights for minors because minors are traditionally treated differently than adults” and
27
held that juveniles do have a fundamental right to free movement.” Id., at 944-945. While the
28
24
Ninth Circuit was “mindful that strict scrutiny in the context of minors may allow greater burdens
1
2
3
4
5
6
7
8
9
10
on minors than would be permissible on adults as a result of the unique interests implicated in
regulating minors,” it applied strict scrutiny and struck down the ordinance. Id, at 946.
In striking down the ordinance, the Ninth Circuit explained the applicable test:
In order to survive strict scrutiny, the classification created by the
juvenile curfew ordinance must be narrowly tailored to promote a
compelling governmental interest. Plyler, 457 U.S. at 217, 102 S.Ct.
at 2395. To be narrowly tailored, there must be a sufficient nexus
between the stated government interest and the classification created
by the ordinance. Id., at 216-17, 102.
Id., at 946. The Ninth Circuit found that while the state had a compelling interest in protecting
minors and preventing crime, the City made “little showing, however, that the nocturnal, juvenile
11
12
curfew is a particularly effective means of achieving that reduction [in crime]” Id., at 946-48. The
13
Ninth Circuit further explained that “[i]n order to be narrowly tailored, the ordinance must ensure
14
that the broad curfew minimizes any burden on minors’ fundamental rights, such as the right to
15
free movement,” and found that the ordinance did not sufficiently exempt legitimate activities
16
17
18
19
from the curfew. Id., at 984. Declaring the curfew ordinance unconstitutional, the Court held:
“We therefore conclude that the City has not shown that the curfew is a close fit to the problem of
juvenile crime and victimization because the curfew sweeps broadly, with few exceptions for
20
otherwise legitimate activity. The broad sweep of the ordinance is particularly marked for an
21
ordinance aimed, as the City admitted, at illegal gang activity.” Id., at 949.
22
23
While the State of Nevada has a compelling interest in preventing crime by convicted sex
offenders (including juvenile sex offenders), like the San Diego ordinance in Nunez, the
24
25
movement restrictions are not narrowly tailored to meet that interest. There is little evidence that
26
juvenile sex offenders are likely to re-offend; indeed, reliable studies show that juvenile sex
27
offending is treatable and temporary. Affidavit of Dr. Rogers, Exhibit A.
28
evidence that they pose any danger, juvenile sex offenders will, even if still juveniles, be
25
Despite the lack of
prohibited under the language of A. B. 579 and S. B. 472, from attending school; participating in
1
2
3
sporting events with other children, or even walking around the city.
 The right to privacy.
4
5
6
The concept of privacy or the right to be let alone is deeply rooted in our heritage.
Justice
Brandeis, who is sometimes referred to as the father of the idea of the constitutional right to
privacy, wrote:
7
The makers of our constitution undertook to secure conditions
favorable to the pursuit of happiness. They recognized the
significance of man’s spiritual nature, of his feelings and of his
intellect . . . They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They conferred, as
against the Government, the right to be let alone—the most
comprehensive of rights and the right most valued by civilized men.
8
9
10
11
12
13
Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J.,
dissenting).
14
The United States Supreme Court has fashioned a right of privacy which protects the
15
16
decision-making or autonomy zone of privacy interests of the individual. The Court’s decisions
17
include matters concerning marriage, procreation, contraception, family relationships and child
18
rearing, and education. Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 35 L. Ed. 2d 147
19
20
(1973).
An individual’s right to privacy is clearly impacted by community notification. The
21
22
consequences have been graphically depicted in the media of late which is discussed more fully in
23
section C, below. The juvenile’s identity will be plastered on the public website and held up for
24
ridicule, humiliation and vilification. The community notification will destroy any chance of a
25
normal life and unfairly stigmatizes him for life. It will result in people shunning and avoiding the
26
subject minor and perhaps even personal attacks against the subject minor for an act of immaturity
27
and delinquency.
28
26
 The right to freedom of association.
1
2
The fundamental right to freedom of association was discussed in United States v. Robel,
3
389 U.S. 258, 88 S. Ct. 419, 19 L. Ed 2d 508 (1967). In Robel, the United States Supreme Court
4
struck down a statute prohibiting members of certain communist organizations from employment
5
in a defense facility on the ground that the statute was an unconstitutional abridgment of the right
6
of association protected by the First Amendment. The Court noted the congressional concern over
7
8
9
10
11
12
13
the danger of sabotage and espionage in national defense industries and recognized that when
legitimate legislative concerns are expressed in a statute, the statute must be narrowly drawn to
lessen the impact on First Amendment freedoms.
A. B. 579 and S. B. 471 limits the juvenile sex offenders’ freedom of association. It
impacts their ability to spend time and associate with their peer group, friends and family. As
members of the group the legislature prohibits contact with, a clear infringement of the freedom of
14
15
association is manifest.
16
Here, A. B. 579 includes certain juvenile delinquents in its adult sexual offender
17
registration scheme and impacts the fundamental rights discussed above. The legislation affects
18
their rights to liberty, free movement, privacy and association by imposing lifetime supervision,
19
with the various restrictions, community notification and registration. Because of the particular
20
statute that is violated, not because of an individualized assessment of risk, the juvenile
21
22
delinquents will be included with the most serious and dangerous adult offenders regardless of
23
their individual risk. Effective July 1, 2008, the subject minor will be placed on lifetime
24
supervision with adult offenders. He will be subject to many restrictions to his personal freedom.
25
Among other conditions, he will be restricted to where he can reside and even accept employment.
26
He will be prevented from even associating with members of his own peer group. Further, Tier III
27
offenders (children adjudicated delinquent of sexual assault or battery with intent to commit sexual
28
27
assault, or an attempt or conspiracy to commit this offense, on another child under the age of 14)
1
2
and their families will be prohibited from living within 1000 feet of schools, bus stops, day care
3
centers, play grounds, athletic fields, etc. These children will also be prohibited from participating
4
in activities at these facilities.
5
6
C. EQUAL PROTECTION
Generally, if not subject to a more exacting constitutional test, legislation is presumed to
7
8
9
pass constitutional muster and will be sustained if the classification drawn by the statute or
ordinance is rationally related to a legitimate state interest. City of Cleburne v. Cleburne Living
10
Center, 473 U.S. 432 (1985). If the classification disadvantages a “suspect class” or impinges a
11
“fundamental right,” the ordinance is subject to strict scrutiny. Plyler v. Doe, 457 U.S. 202, 216-
12
13
17 (1982). A. B. 579 creates a class of juvenile delinquents and subjects them to extended
jurisdiction and punishment similar to the most hardened and egregious adult offenders. Subject
14
15
minor submits that by enacting A.B. 579, which redefines sex offenders to include children
16
adjudicated delinquent for certain offenses and designating them automatically as Tier II and Tier
17
III offenders, the legislature has created a suspect class. As stated above, the classification of
18
delinquents in the same category as adult sex offenders and requiring lifetime supervision is based
19
upon hysteria, and is irrational. The statute is targeting a politically unpopular group (juvenile sex
20
offenders) and was derived from scientifically unjustifiable fears of risk to the community.
21
22
The law recognizes that children engage in irresponsible behaviors that are fleeting, and
23
cease as they mature and their identities are more settled. Science and social science recognize that
24
“[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often
25
than in adults and are more understandable among the young. These qualities often result in
26
impetuous and ill-considered actions and decisions . . .” Roper v. Simmons, supra at 569. Yet,
27
the Nevada Legislature, in enacting A. B. 579, has created a class of juvenile delinquents and
28
28
treating them with adult sanctions. These children are still undergoing physical and emotional
1
2
maturation and are still developing their identities. They were prosecuted in the juvenile court
3
system without all of the procedural safeguards of the criminal justice system, and yet, the State is
4
holding them to the sanctions reserved for the most dangerous of adult sex offenders. This rigid
5
classification system requires that the legislation be subject to strict scrutiny.
6
Under strict
scrutiny, the legislation can only be upheld if it is necessary to advance a compelling state interest,
7
8
9
and it is narrowly tailored to achieve that interest. Tarango v. State Indus. Ins. Sys., 117 Nev. 444,
25 P.3d 175 (2001). Assuming the state interest in this legislation is intended to protect the
10
community, this legislation is not narrowly tailored to achieve that interest. The legislation takes
11
the lowest risk offenders prosecuted in juvenile court and subjects them to lifetime supervision and
12
the public “branding” and ostracism. It lumps them irrationally into the same category as the most
13
serious of adult sex offenders.
14
15
16
D.
EVEN IF NO FUNDAMENTAL RIGHT IS IMPLICATED,
THE SEX OFFENDER REGISTRY SCHEME, AS APPLIED
TO JUVENILES, IS UNCONSTITUTIONAL BECAUSE IT IS
IRRATIONAL
17
18
19
Even if one, for the sake of argument, applies the least stringent test which applies where
there is no fundamental right or suspect class; the court applying a rational basis test would
20
determine this statutory scheme is unconstitutional. See, e.g. Ramos v. Town of Vernon, 353 F.3d
21
171 (2d Cir. 2003). The presumption of constitutionality, under the rational basis test, can only be
22
overcome if there is no rational relationship between the legislation and a legitimate government
23
interest. Hodel v. Indiana, 452 U.S. 314 (1981). Including juvenile delinquents in this statutory
24
25
scheme does not bear a rational relationship to the underlying purpose or justification of the
26
statute. It is a law based upon hysteria lacking little, if any, scientific basis or justification. It is
27
akin to the misguided laws of the past interning people of Japanese ancestry, during World War II,
28
as threats to national security and the witch hunts of old Salem.
29
In City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), the United States
1
2
Supreme Court reviewed an ordinance that required group homes for the mentally retarded to
3
attain a special use permit that was not required of other group homes. The alleged government
4
interest was for the protection from the negative effects on the community that mentally retarded
5
patients might impose. The Cleburne Court ruled that such perceived dangers were really non-
6
existent, and the permit requirement was merely a means to prevent such an unpopular group home
7
8
9
from being located anywhere.
The United States Supreme Court also struck down legislation under a rational basis review
10
in the case of Romer v. Evans, 517 U.S. 620, 632 (1996). The United States Supreme Court
11
struck down a Colorado Constitutional Amendment that lacked any rational relationship to a
12
13
legitimate state interest. The amendment prohibited the enactment of laws preventing
discrimination based upon sexual preference, under the alleged state’s interest in protecting the
14
15
liberties of business owners and other individuals who have personal or religious objections to
16
homosexuality. This limited purpose was considered illegitimate and irrational when viewed in
17
light of the far-reaching and devastating consequences to the affected social class. The Supreme
18
Court noted that “[b]y requiring that the classification bear a rational relationship to an
19
20
independent and legitimate legislative end, we ensure that classifications are not drawn for the
purpose of disadvantaging the group burdened by the law.” Id., at 633. The Romer Court held
21
22
that “[w]e cannot say that [the Colorado Constitutional Amendment] is directed to any identifiable
23
legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual
24
context from which we discern a relationship to legitimate state interests; it is a classification of
25
persons undertaken for its own sake, something the Equal Protection Clause does not permit.”
26
Romer v. Evans, supra, 517 U.S. at 635.
27
28
30
The classification of delinquents in the same category as adult sex offenders, requiring
1
2
lifetime supervision and distributing their personal information to the public is based upon
3
hysteria, and is irrational. The statute is targeting a politically unpopular group (juvenile sex
4
offenders) and was derived from scientifically unjustifiable fears of risk to the community. As in
5
Cleburne, the perceived dangers are really non-existent. The adolescent sex offenders being
6
impacted by this legislation were children at the time of the commission of the offense. Children
7
8
9
10
11
12
13
are different than adults. The individuals that this legislation is ostensibly intended to protect
society from are generally low risk to reoffend.
Dr. Rogers points out that there is no need to create additional burdens which will do
nothing further to stop already identified sexual offenders from re-offending, and will merely
widen the net of permanently stigmatized individuals to include children and youth, many of
whom are completely curable of any mental disorder they may have. Please see Exhibit “A”,
14
15
Affidavit of Dr. Rayna Rogers. The alleged purpose of including adjudicated delinquents within
16
the reach of A. B. 579 is illegitimate and irrational especially when considering the far reaching
17
and devastating consequences to children.
18
19
The devastating impact of community notification and sex offender websites on
individual’s lives has been discussed in scholarly articles and in the press in the recent past. In An
20
American Travesty, Franklin E. Zimring, University of Chicago Press (2004), the author points out
21
22
there is little or no evidence of any crime prevention from notification schemes. Zimring points
23
out that “[c]ommunity notification amounts to being branded for life as a sexual offender. It may
24
be difficult to undo the harms generated by sex-offender registration but it is impossible to undo
25
the harms of community notification.” Id., at 155. On July 22, 2007, the New York Times
26
27
published a cover story, How Can You Distinguish a Budding Pedophile From a Kid With Real
Boundary Problems? By Maggie Jones. (Attached hereto as Exhibit “B”).
28
31
Ms. Jones gives
accurate examples of the real impact of community notification website on children. These
1
2
children are bullied in school, terrorized to the point of being suicidal. A very real consequence is
3
that these children move into adulthood and struggle to stay in the mainstream because they have a
4
hard time finding and holding on to employment. Ms. Jones also discusses the unintended
5
consequences of this draconian practice. Some families will remain silent to protect their children
6
from community notification rather than seek intervention that would benefit both the victim and
7
8
9
the offender. Another very real and frightening concern is vigilantism. Ms Jones discusses this in
her article and it was recently addressed in our own community in the Las Vegas Sun Newspaper.
10
Abigail Goldman reported on November 18, 2007, how people have been attempting to harass a 35
11
year old sex offender named Christopher. ( Exhibit “C”). Unfortunately, Christopher no longer
12
13
lives at the address listed on the registry. The home is now occupied by 71 year old Harry Berlin
and it is he who is being victimized:
14
15
16
17
18
19
It’s worse during the holidays. Christmas, New Year’s,
Halloween. That’s when they really start knocking. Calling him out
in the middle of the night. Showing up at his stoop in angry packs.
“Christopher,” they wheeze through the front door,
“Christopherrrrrr – we know you’re in there. . . “
Earlier this month, on December 14, 2007, the Las Vegas Review Journal published an
article about a homicide from the Los Angeles Times. A construction worker in Lakeport,
20
California was arrested in the homicide of a neighbor after he found that the neighbor was listed on
21
22
the state website as a convicted sex offender. The District Attorney in the case has acknowledged
23
that a motive that is being investigated was that the accused knew the deceased was on the sex
24
offender web site and did not want him as a neighbor. (Exhibit “D”).
25
26
27
Not only will these children be the target of vigilantism, the impact of lifetime supervision
and community notification will isolate them from mainstream society. Maggie Jones commented
in her New York Times article: “As Elizabeth Letoureau (professor at the Medical University of
28
32
South Carolina) told me recently, ‘If kids can’t get through school because of community
1
2
3
notification, or they can’t get jobs, they are going to be marginalized.” And marginalized people,
she noted, commit more crimes.”
4
On September 12, 2007, the Human Rights Watch, the largest human rights organization in
5
the United States, issued a landmark study calling for a dramatic reversal of sex offender policies
6
7
8
9
(such as A. B. 579) which “do more harm than good.” No Easy Answers: Sex Offender Laws in
the United States,” Human Rights Watch, hrw.org. The report noted that most juvenile offenders
are likely to outgrow such behavior, particularly if given treatment. Recidivism rates for juvenile
10
offenders are extremely low, and noted that few adult offenders committed sex crimes as youths.
11
Id., at pg. 70.
12
13
Recent studies clearly show that community notification and websites are not only
theoretically unsound, but are also ineffective. The Human Rights Watch found there is scant
14
15
justification for ever registering juvenile offenders, even those who have committed serious
16
offenses. Most are likely to outgrow such behavior, particularly if given treatment. Recidivism
17
rates for juvenile offenders are extremely low, and few adult offenders ever committed sex crimes
18
as a youth. Id. In No Easy Answers, the Human Rights Watch recommends that registration
19
20
requirements be limited to people assessed to pose a real risk. No Easy Answers: Sex Offender
Laws in the United States,” Human Rights Watch, hrw.org (September 12, 2007).
21
22
The expansion of adult sex offender restrictive laws to include juveniles can be compared
23
to the trend in the 1990’s to prosecute ever increasing number of children in the adult system. A
24
few tragic incidents of juvenile violence in that decade sparked a political stampede by state
25
lawmakers to find a “solution” to violent crimes by juveniles. The public perception of juvenile
26
violence being a huge and growing problem caused a mass hysteria and political move to establish
27
automatic and presumptive transfer statutes in numerous states, in spite of the fact that the number
28
33
of violent crimes committed by juveniles has actually decreased. (Please see, Office of Juvenile
1
2
Justice and Delinquency Prevention Statistical Briefing Book, available at http://ojjdp.ncjrs.org.)
3
The public misperception of actual risks of juvenile delinquency has fueled the fire for new and
4
ever harsher sanctions.
5
6
It cannot be shown that the state has an even a rational basis for including adjudications of
delinquency in the definition of “sex offender” under the law and applying the extensive sex
7
8
9
offender restriction scheme to juveniles. Children are different than adults, present as a low risk to
recidivate and highly likely to be rehabilitated within the juvenile justice system. There is no
10
rational reason to place these individuals on lifetime supervision or to subject them to public
11
humiliation, public ostracizing and being marginalized by society.
12
13
14
15
E.
A. B. 579 IS VOID FOR VAGUENESS IN VIOLATION
OF THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
In Williams v. State, 110 Nev. 1182, 885 P.2d 536 (1994) the Nevada Supreme
16
Court reviewed the tests for unconstitutional vagueness. A law is unconstitutionally vague if it
17
fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden
18
by statute and lacks sufficient explicit standards for those who apply them to avoid the potential
19
for arbitrary enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L.Ed. 2d
20
110, 92 S. Ct. 839 (1972). In Grayned v. City of Rockford, 408 U.S. 104 (1972), the United States
21
22
Supreme Court explains the second vagueness test as follows:
23
24
25
26
27
28
Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to
policemen, judges and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application.
Grayned, 408 U.S. at 108-09.
34
The “void for vagueness doctrine” requires that a penal statute define a criminal offense
1
2
with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a
3
manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
4
461 U.S. 352, 357 (1983). The Kolender Court noted the more important aspect of the doctrine is
5
not that of actual notice but the requirement that the legislature establish minimum guidelines to
6
govern law enforcement. Id. Where the legislature fails to provide such minimal guidelines, a
7
8
9
10
11
12
13
criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries
to pursue their personal predilections.” Smith v. Goguen, 415 U.S. 566, 575.
A. B. 579 mandates that individuals that have been adjudicated delinquent for the offenses
listed in NRS 62F.200 are to be subject to lifetime supervision. A. B. 579, section 6. The
legislature, in enacting the law, failed to clarify which governmental entity has the responsibility to
enforce the lifetime supervision on juveniles that have been adjudicated delinquent for an offense
14
15
listed in NRS 62F.200. A. B. 579, in section 45, states that the definition of a child includes “[a]
16
person who is otherwise subject to the jurisdiction of the juvenile court as a juvenile sex offender
17
pursuant to the provisions of NRS 62F.200, 62F.220 and 62F.260.” (stricken text omitted). A. B.
18
579, section 47, provides that “[t]he juvenile court may not terminate its jurisdiction concerning
19
the child for the purposes of carrying out the provisions of NRS 62F.200, 62F.220 and 62F.260
20
until the child is no longer subject to registration and community notification as a juvenile sex
21
22
offender pursuant to NRS 62F.200, 62F.220 and 62F.260.” (stricken text omitted). Clearly, the
23
court cannot terminate its jurisdiction until the child is no longer subject to registration and
24
community notification as a juvenile sex offender. Yet, there no longer exists a provision giving
25
the court the power to relieve the child of being subject to community notification (with the repeal
26
27
of NRS 62F.240; see A. B. 570, section 56). This then raises the following questions: are these
individuals who are defined as a “child,” subject to the juvenile court jurisdiction for their
28
35
lifetime? Further, if they are not, what entity in the adult system properly has jurisdiction over
1
2
3
them?
There is no reference in A. B. 579 regarding the terms of the “lifetime supervision.” There
4
is, however, a provision that a person can petition the State Board of Parole Commissioners for
5
release from lifetime supervision after 10 years. They are still, however, subject to registration and
6
community notification. A. B. 579, section 6.
If one examines the statutes pertaining to
7
8
9
10
11
12
13
Pardons and Parole, (which ordinarily do not apply to an adjudication of delinquency), the parole
board is authorized to set up a program of lifetime supervision to commence after any period of
probation or parole. NRS 213.1243.
NRS 213.1243 also provides that “lifetime supervision” shall be deemed a form of parole.
A person who commits a violation imposed pursuant to the program is guilty of a misdemeanor if
it is a minor violation or a felony if it is a major violation. A major violation is defined in the
14
15
statute. A minor violation means a violation that does not constitute a major violation.
16
A “minor violation” will result in a misdemeanor charge. How is one to know what
17
conduct is prohibited? There are no guidelines in the statute as to the power of the board to
18
dictate terms and violations-other than what constitutes a “major violation.” NRS 213.1243.
19
Subject minor submits the statute is impermissibly vague on its face. Neither A. B. 579 nor NRS
20
213.1243 provides guidance or standards for determining the parameters of lifetime supervision,
21
22
what conduct is prohibited or even which governmental entity has jurisdiction to provide the
23
lifetime supervision over individuals adjudicated delinquent in the juvenile court. This, as a result,
24
encourages arbitrary and discriminatory enforcement.
25
26
“The vagueness doctrine is based upon the principle that ‘a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence must necessarily
27
guess at its meaning and differ as to its application, violates the first essential of due process of
28
36
law.’ Thus, when a statute is so unclear that vagueness pervades the law’s content, it is subject to
1
2
a facial attack.” In re T. R., 119 Nev. 646,652, 80 P. 3d 1276 (2003).
3
The statute in the instant case is void on its face for being unconstitutionally vague in that it
4
impermissibly delegates basic policy matters, ostensibly to the pardon’s board, for resolution on an
5
ad hoc and subjective basis. This creates unnecessary dangers of arbitrary and discriminatory
6
application.
7
8
9
A. B. 579 redefines the Tier System and many juvenile sex offenders will be classified as
Tier III offenders. These individuals will be impacted by S. B. 471 which limits where these
10
individuals and live and where they can “be.” This poses the question, what is the meaning of
11
“be?” Does this mean that an individual can be arrested for driving through a school zone on the
12
13
way to visit his parole officer? Does this mean an individual cannot visit his or her primary
physician because the office is within 500 feet of a day care center? Can a sex offender go
14
15
16
17
18
19
shopping in a mall where there is a video arcade on the property or a school bus stop bus stop
across the street?
On May 18, 2007, Senator Dina Titus discussed then Senate Bill 232 on the radio show
State of Nevada. See, knpr.org/son/archieve/detail.cfm?programid=1065. This bill is strikingly
similar to S.B. 471. Senator Titus described the individuals that would be affected by this bill
20
being predators and the most dangerous sex offenders. She described them being in the
21
22
community after release from prison and the bill would reduce their temptation to violate children.
23
Senator Titus explained that the offenders affected by this bill are those that are likely to re-offend
24
and that rehabilitation programs for these individuals do not work. When posed a question whether
25
a sex offender could go shopping at the Boulevard Mall with a school across the street, she stated
26
27
that is an extreme interpretation, not intended by the bill. She explained that the individual would
have to be “loitering” at the location in question, having no legitimate purpose at the location.
28
37
However, S. B. 471 does not limit its application to individual’s loitering at certain locations; it
1
2
3
states that the offender cannot knowingly be within 500 feet of these places. S. B. 471, section
2(l).
4
5
6
7
8
9
10
A. B. 471 is not limited to parolees being released from prison, or to diagnosed pedophiles.
It is applied to individuals released on probation. It also applies to individuals adjudicated when
they were juveniles and have been rehabilitated as well as adolescents undergoing treatment and
determined to be a low risk to re-offend. It sweeps broadly and “men of common intelligence
must necessarily guess at its meaning and differ as to its application.” In re T. R., 119 Nev.
646,652, 80 P. 3d 1276 (2003).
11
12
II.
13
WHETHER RETROACTIVE APPLICATION OF A.
B. 579 TO JUVENILE DELIQUENTS VIOLATES EX
POST FACTO CLAUSES OF THE NEVADA8 AND
UNITED STATES CONSTITUTIONS.
14
15
16
The United States Constitution forbids the states from passing any "ex post facto law."
17
18
United States Constitution, Article I, § 10. The framers of the Constitution viewed the prohibition
19
on ex post facto legislation as one of the most fundamental protections against arbitrary and
20
oppressive governmental abuse of power. (Stevens, J., dissenting) (quoting The Federalist No. 44,
21
p. 282 (C. Rossiter, ed. 1961)). The United States Supreme Court has held that the clause is aimed
22
at laws that "retroactively alter the definition of crimes or increase the punishment for criminal
23
24
acts." Collins v. Youngblood, 497 U.S. 37, 41, 111 L.Ed. 2d 30, 110 S.Ct. 2715 (1990) (citing
25
Calder v. Bull, 2 U.S. 386, 391-392, 1 L.Ed. 648 (1798) (opinion of Chase, J.)), quoted in Cal.
26
Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597, 1601 (1995).
27
The Supreme Court of the United States has explained:
28
8
Nev. Const. art. 1 §15
38
1
2
3
To fall within the ex post facto prohibition, a law must be
retrospective-that is, “it must apply to events occurring before its
enactment”-and it “must disadvantage the offender affected by it,”
by altering the definition of criminal conduct or increasing the
punishment for the crime.
4
5
Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981).
6
A.B. 579 is clearly retrospective in that it defines an “offender” to include a person who, after July
7
1, 1956 has been “[a]djudicated delinquent by a court having jurisdiction over juveniles of a crime
8
against a child that is listed in NRS 62F.200 if the offender was 14 years of age or older at the time
9
of the crime.” The legislative intent is indeed punitive. A. B. 579 increases the punishment to
10
individuals having been adjudicated delinquent by increasing the punishment from a period of
11
12
supervision not to exceed his or her 21st birthday to his lifetime. Their personal information is
13
distributed publicly even though there has been no demonstration that they pose any risk to the
14
community. Here, application of A. B. 579 to juvenile delinquents is akin to the ancient practice
15
of branding9 criminals or placing the children in stocks in the town square. They are publicly and
16
permanently ostracized for the remainder of their lives for an act of youthful indiscretion. Social
17
18
19
science would support that the vast majority of children with adequate services will be
rehabilitated and are unlikely to ever re-offend.
20
The Nevada Supreme Court has already determined that lifetime supervision is
21
“sufficiently punitive in nature and effect as to render it a direct penal consequence of a guilty
22
plea.” Palmer v. State, 118 Nev. 823, 829, 59 P.3d 1192 (2002). Given that there is no
23
demonstration of individualized risk to the public, the application of this legislation to include acts
24
25
26
27
of juvenile delinquency can only be termed punitive.
In cases involving juvenile sex offenders, courts are concerned with reconciling the
provisions of the registration and community notification acts with the rehabilitative purposes at
28
39
the core of the state’s juvenile code. The Alabama appellate court held that disseminating the
1
2
identities of juveniles through community notification contradicts the rehabilitative goals of the
3
Juvenile Justice Act and violates the Ex Post Facto Clause. State v. C.M., 746 So. 2d 410, 416-17
4
(Ala. Crim. App. 1999).
5
6
7
8
9
While there is no easy litmus test to determine the penal nature of a statute, the United
States Supreme Court has noted that the inquiry as to the punitive nature of a sanction “has been
extremely difficult and elusive of solution.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168,
83 S. Ct. 554, 9 L.Ed.2d 644 (1961). The United States Supreme Court established a seven factor
10
analysis in Kennedy v. Mendoza-Martinez, supra, to determine whether an act is so punitive that it
11
negates the legislature’s intent that it is “civil” and not criminal. The factors which make up this
12
13
traditional test are: 1) Whether the sanction involves an affirmative disability or restraint, 2)
whether it has historically been regarded as punishment, 3) whether it comes into play only on a
14
15
finding of scienter, 4) whether its operation will promote the traditional aims of punishment-
16
retribution and deterrence, 5) whether the behavior to which it applies is already a crime, 6)
17
whether an alternative purpose to which it may rationally be connected is assignable for it, and 7)
18
whether it appears excessive in retaliation to the alternative purpose assigned. Id. at 168-69. This
19
20
standard is frequently applied when reviewing registration and community notification laws. See,
State v. C.M., 746 So. 2d 410, 416-17 (Ala. Crim. App. 1999). 10 The following analysis will
21
22
address only those Kennedy factors helpful in analyzing the punitive nature of this legislation:
 Whether the sanction involves an affirmative disability or restraint:
23
24
25
The Alabama Appellate Court, in State v. C.M., 746 So.2d 410 (Ala. Crim. App. 1999)
stated:
26
27
28
“Branding: An ancient mode of punishment by inflicting a mark on an offender with a hot iron.” Black’s Law
Dictionary, 5th Ed. P. 170 (1979).
9
40
Clearly, the legislative intent in enacting the Juvenile Justice Act is
to keep the identities of juveniles from public disclosure because the
purpose of The Juvenile Justice Act is not to punish but to
rehabilitate. Applying the provisions of the community notification
act to juveniles totally abolishes long-standing Alabama precedent
by directly contradicting the stated goal of the Juvenile Justice Act,
i.e., to return the juvenile to the home as quickly as possible. When
C.M. and C.D.M. committed the sexual offenses in 1996, the Act
was not applicable to them. Also, the Act makes it a criminal
offense, a Class C felony, for a sex offender to knowingly fail to
comply with any provision of the Act. For these reasons, the Act
imposes an affirmative disability or restraint on juvenile offenders.
1
2
3
4
5
6
7
8
9
Like the Act in C.M., supra, the sanctions imposed in A. B. 579 imposes an affirmative
disability or restraint on juvenile offenders. Juvenile delinquents will be categorized as Tier II and
10
Tier III offenders based solely on the offense for which they are adjudicated, not their individual
11
12
level of risk. All individuals that have offended against a child under 18 will be subject to
13
registration. Tier II offenders will have to register in person every 180 days and Tier III offenders
14
will have to register in person every 90 days. Failure to comply will result in criminal prosecution.
15
The classification of low risk juvenile delinquents as Tier III brings into play S.B. 471 which will
16
preclude Tier III offenders from living in a particular place and being in certain areas.
17
 Whether the sanction has historically been regarded as punishment:
18
The supervision component of A. B. 579 has historically been regarded in this state as
19
20
punitive. In Palmer v. State, 118 Nev. 823, 59 P.3d 1192 (2002), the Nevada Supreme Court
21
reviewed Nevada’s lifetime supervision law as it applies to adults. The Court noted that the
22
legislative history indicates that it was intended to be a non-punitive tool to assist law enforcement
23
personnel in solving crimes. The legislation was intended to oversee “dangerous sexual predators,
24
25
people with a high degree of likelihood of recidivism.” Id., at 827 (citing, Hearing on S.B. 192
26
27
28
The standard set out in Kennedy v. Mendoza-Martinez was applied by the Nevada Supreme
Court in determining that lifetime supervision is punitive despite the legislature’s intent in Palmer
v. State, infra, 118 Nev. 823, 829, 59 P.3d 1192, 1196 (2002).
10
41
Before the Assembly Comm. On Judiciary, 68th Leg. (Nev., April 12, 1995)). The Palmer Court
1
2
held:
Despite some indications that the Nevada Legislature intended
lifetime supervision to be a civil law enforcement tool, we conclude
that, on balance, it is sufficiently punitive in nature and effect as
to render it a direct penal consequence of a guilty plea,
consequence of which the defendant must be advised. Lifetime
supervision is a form of punishment because the affirmative
disabilities and restraints it places on the sex offender have a direct
and immediate effect on the range of punishment imposed.
3
4
5
6
7
8
9
Id., at 829 (emphasis supplied).
Registration and community notification, without regard to individual risk factors is akin to
10
branding and public humiliation. Historically, branding and public humiliation is viewed as
11
12
13
punishment.
 Whether its operation will promote the traditional aims of punishment-retribution
14
and deterrence:
15
The traditional aims of punishment – deterrence and retribution- are also present. In
16
Nollette v. State, 118 Nev. 341, 46 P.3d 87 (2002), the Nevada Supreme Court reviewed whether
17
18
19
application of community notification and registration to adult criminal defendants and held that
it is not a penal consequence. The court noted that the information disseminated was based upon
20
an assessment of the individual’s risk of committing future crimes. “Notable, level-one offenders
21
are not subject to widespread community notification because such offenders pose a low risk of
22
future dangerousness. Level-three offenders posing a high risk of future dangerousness, by
23
contrast, are subject to far-reaching community-notification provisions designed to reach members
24
25
26
27
28
of the public who are likely to encounter the sex offender.” Id. 118 Nev. at 345-346.
determining whether the requirements are “non-punitive” the court noted that:
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
42
In
1
2
3
4
5
6
7
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.
8
9
The Nollette Court noted that although there might be a deterrent effect, which is a traditional aim
10
of punishment, that fact alone does not make it a punitive statute. “The mere possibility of a
11
secondary, deterrent effect does not, without more, make the statue punitive in nature.” Id. at 347
12
13
(emphasis supplied).
Subject minor submits that there is a much more punitive effect in the application of A. B.
14
15
579 to individual’s adjudicated delinquent than the statute addressed in Nollette. First, as noted
16
above, the tier-level classification system described in Nollette is repealed and replaced with new
17
tiers based solely on the adjudicated offense. The Nollette Court reasoned that the three-level
18
classification ensured protection of low risk offenders. However, under A. B. 579, the three-level
19
classifications are redefined and no longer ensure that there is community disclosure only when the
20
risk is high under the rigid categorical approach. All sex offenders are subject to community
21
22
disclosure, not merely those who pose a high risk. Juvenile offenders will be classified as Tier II
23
or Tier III even though their actual risk level is low. Children adjudicated delinquent for these
24
enumerated sex offenses are subject to lifetime supervision and prosecution for failure to abide by
25
the proscriptions in the statute. Thus, the only logical purpose is to punish for past conduct. Even
26
if the Tier system had not been changed, section 27 provides that all sex offenders convicted of a
27
crime against a child under 18 shall be subject to registration regardless of his Tier level. The vast
28
43
majority of victims involving an adolescent sex offenders prosecuted in juvenile court are under
1
2
3
the age of 18.
The punitive impact is also established by the fact that the supervision and restraint on the
4
subject minor’s liberty is increased from a period of approximately 3 years to a lifetime. This
5
legislation indeed places an affirmative disability and restraint on the subject minor. This child
6
will now be subject to, among other conditions, a requirement to appear every 90 or 180 days to
7
8
9
update the registry. He will be required to appear in person within 48 hours to update the registry
every time he moves, changes school or employment. In Nollette, supra, the appellant argued that
10
the community notification requirement is indeed punishment because he will be stigmatized by
11
the dissemination of his personal information. The Nevada Supreme Court reasoned that this
12
alone did not make the requirement punitive because the nature of the offender’s conviction is a
13
matter of public record anyway. To the contrary, unlike criminal records, delinquency records
14
15
have not been a matter of public record and the public would not otherwise have access to this
16
information. Placing these adult/criminal sanctions to a child is unwarranted, excessive and cruel
17
punishment.
18
19
 Whether the sanction appears excessive in relation to the alternative purpose
assigned:
20
The punitive nature of A. B. 579, as applied to juvenile delinquency cases, is self evident
21
22
when one examines “whether the sanction appears excessive in relation to the alternative purpose
23
assigned.” Kennedy v. Mendoza-Martinez, supra, 372 U.S. at 169. The Alabama Appellate
24
Court, in State v. C.M., 746 So.2d 410, 418-19 (Ala. Crim. App. 1999) supra, stated:
25
26
27
Whether the scope of the Act is excessiveness in relation to
alternative purpose. The provisions of the Act as applied to juveniles
are excessive, given their purpose of protecting the public. As
applied to juveniles, the Act goes beyond what is necessary to
accomplish its stated purpose.
28
44
Subject minor submits that the degree to which A. B. 579 conflicts with the Juvenile
1
2
Justice Act, by providing public access to registration information, placing restrictions on juvenile
3
delinquents, lacking any individualized assessment and containing criminal penalties for non-
4
compliance, clearly demonstrates that the legislative enactment is “punitive.” The Legislative
5
Declaration creating the juvenile court system, requires that the statutes must be “liberally
6
7
8
9
construed to the end that . . . [e]ach child who is subject to the jurisdiction of the juvenile court
must receive such care, guidance and control, preferably in the child’s own home, as will be
conducive to the child’s welfare and the best interest of this state. . .” NRS 62A.360. The juvenile
10
system was designed with an understanding of the susceptibility of juveniles to immature and
11
irresponsible behavior. Their vulnerability and comparative lack of control over their immediate
12
13
surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape
the negative influences of their environment. The subject minor was adjudicated of an act of
14
15
delinquency that occurred when he was 15-17 years of age. At the time of his disposition hearing,
16
the subject minor believed that his liberty would be restricted for a period of approximately three
17
years, but not beyond the age of 21. The court informed the subject minor what steps he needed
18
take to be released from community notification requirements. Supervision of the subject minor
19
beyond the age of 21 was not addressed by the district court because it was then, not permitted
20
under the law. Now his entire life will be severely altered. He is to be supervised for the rest of
21
22
his life and be subjected to having his personal information disseminated on the virtual town
23
square.
24
/////
25
/////
26
/////
27
28
45
III.
1
2
3
4
5
6
WHETHER RETROACTIVE APPLICATION OF A.
B. 579 TO CHILDREN ADJUDICATED
DELINQUENT IN JUVENILE COURT VIOLATES
THE CONTRACT CLAUSE OF THE STATE AND
FEDERAL CONSTITUTIONS.
Both the Federal Constitution and the State Constitution prohibit the state legislature and
Congress from passing laws that impair contracts. United States Constitution, Art. 1, § 10, The
7
8
9
Constitution of the State of Nevada, Art. I. § 15. Plea bargains are enforceable contracts which are
the vehicles for the resolution of a vast majority of delinquent and criminal cases. These contracts
10
or agreements are entered into with an understanding that the state of the law regarding community
11
notification applicable at the time of the act is the law applicable to the accused-who is a party to
12
13
the contract. The United States Supreme Court has noted that plea bargaining has become an
essential component of the administration of justice in America. Blackledge v. Allison, 431 U.S.
14
15
16
17
18
19
63 (1976). Due Process requires that the bargain be kept when a guilty plea is entered. Santobello
v. New York, 404 U.S. 257 (1971).
Here, the passage of laws which drastically change the impact on the subject minor and
require lifetime supervision, registration and community notification as an adult offender,
constitutes a complete and serious impairment of the plea agreement entered into between the
20
accused and the state of Nevada. The recent changes to the sex offender scheme in S. B. 579 and
21
22
23
24
25
26
S.B. 471 materially alter the plea agreements. In fact, they destroy the benefit of the bargain as to
the accused, and as such, violate the contract clause of the state and federal Constitutions.
In the instant case, the subject minor entered a guilty plea with the understanding that he
would be under the supervision of the court and subject to community notification as a juvenile sex
offender. He was determined to be Tier One and not subject to widespread community
27
notification. He was advised that the juvenile court had the power to relieve him from the
28
46
registration and community notification requirements upon a finding that he has been rehabilitated
1
2
to the satisfaction of the court. He was advised that once he is found to be rehabilitated by the
3
juvenile court and relieved of community notification as a juvenile sex offender, he would not be
4
subject to adult community notification and registration requirements. He believed that upon a
5
showing of rehabilitation, after 3 years had lapsed, he would be entitled to have his juvenile
6
records sealed. NRS 62H.130 and 62H.150. A. B. 579 materially alters the terms of the
7
8
9
10
11
12
13
agreement by requiring that he comply with registration and community notification with adult
offenders regardless of his level of risk , the steps toward rehabilitation or even if the court has
already found him to have been rehabilitated to the satisfaction of the court.
The accused youth here, has a right under the contract clause to have the offensive ex post
facto legislation requiring lifetime supervision, registration and community notification declared
null and void as to him (and those similarly situated). The law is well settled in this jurisdiction,
14
15
that when the State enters into a plea agreement, it “is held to ‘the most meticulous standards of
16
both promise and performance.’ . . . The violation of the terms or ‘the spirit’ of the plea bargain
17
requires reversal.” Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986) (citation
18
omitted).
19
In Public Emp. Ret.v. Washoe Co., 96 Nev. 718, 615 P.2d 972 (1980), the
employees sought injunctive and declaratory relief arguing that legislation changing the definition
20
of a police officer was unconstitutional under the contract clause. The new definition removed the
21
22
ability of a number of existing employees to remain in the category of employees eligible for early
23
retirement. The Nevada Supreme Court found that public employee contracts are within the ambit
24
of the contract clause under the state and federal constitutions. The court concluded that the
25
legislature acted unreasonably and unnecessarily in enacting legislation which altered the
26
definition of a police officer, thus removing existing employees from the early retirement
27
28
47
provisions. The Court in Washoe County held that the employees and those public employees
1
2
3
similarly situated would eligible to remain in the early retirement program.
More recently, the Nevada Supreme Court addressed the question of whether legislative
4
action reducing retirement benefits violated the Contract Clauses of the United States and the
5
Nevada Constitutions in Nicholas v. State, 116 Nev. 40, 992 P.2d 262 (2000). The Nicholas Court
6
reviewed legislative enactment A.B. 820 passed by the1989 legislature. A.B. 820 quadrupled the
7
8
9
amount of benefits a retired legislator may receive. Due to public outrage, the Governor called a
special session of the legislature for the sole purpose of repealing A.B. 820. The appellants,
10
Nicholas and Craddock, retired during the 5 month period that A.B. 820 was state law. The
11
Nicholas Court held that “[p]ublic employees perform their duties, in reliance on the state paying
12
13
retirement benefits when certain conditions are met. When those rights become absolutely vested,
a contract exists between the employee and the state which cannot be modified by unilateral action
14
15
on the part of the legislature. The repeal of A.B. 820 impaired the obligation of the state to pay the
16
increased pension benefits to these appellants.” Id. at 45. The Nicholas Court ruled “[w]e are
17
unwilling to create a precedent that would impair thousands of employees’ rights solely to prevent
18
a few individuals from collecting greater benefits as a result of the passage of A.B. 820.” Id.
19
20
Just like the contracts in the employment cases cited above, plea negotiations are
enforceable agreements and are held to “the most meticulous standards of both promise and
21
22
performance.” Kluttz v. Warden, 99 Nev. 681, 683-684, 669 P.2d 244 (1983). In the instant case,
23
the subject minor entered into an agreement with the State of Nevada. It was the subject minor’s
24
expectation that in return for his admission of guilt and successful rehabilitation that he would be
25
relieved of any future obligation to register as a sex offender and to be subject to community
26
notification. The subject minor entered a guilty plea, in reliance on the state law which relieved
27
him of any future obligation when certain conditions are met. These rights became absolutely
28
48
vested when the subject minor entered his guilty plea and “cannot be modified by unilateral action
1
2
on the part of the legislature.” Id. Clearly, retroactive application of A.B. 579 impairs this contract
3
negotiated between the subject minor and the State of Nevada and is unconstitutional under both
4
state and federal law and deprives the subject minor the benefit of the bargain.
5
IV.
6
7
8
APPLICATION OF A. B. 579 TO ADJUDICATIONS
OF DELINQUENCY IS CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF THE NEVADA
AND UNITED STATES CONSTITUTIONS
9
10
11
12
The United States Supreme Court has held that the Eighth Amendment “must draw its
meaning from the evolving standards of decency that mark the progress of a maturing society.”
Trop v. Dulles, 428 U.S. 153, 180, 96 S.Ct. 2902, 2929 (1976). In considering whether a
13
14
challenged punishment is cruel and unusual in violation of the Eighth Amendment, courts are
15
required to “ask whether it comports with the basic concept of human dignity at the core of the
16
Amendment.” Id. When this question is asked about A. B. 579 as it applies to adjudications of
17
delinquency, the answer is a resounding “no.” The statutory enactment will require lifetime
18
supervision, private information being made public, restrictions on freedoms on the application of
19
a rigid categorical approach to Tier Assessment (as opposed to an individualized assessment by an
20
21
22
23
24
25
expert, on the basis of risk-related criteria and guidelines). This amounts to the infliction of cruel
and unusual punishment on juveniles in violation of the Eighth Amendment.
In evaluating whether the effects of a sex offender law are “punitive”, courts have
principally relied on the presence or absence of certain statutory factors to determine whether
registration and notification statutes constitute punishment. The seven factor analysis established
26
27
28
by the United States Supreme Court in Kennedy v. Mendoza-Martinez, supra, 372 U.S. 144, 83 S.
Ct. 554 (1963), to determine whether an act is so punitive that it negates the legislature’s
49
denomination that the law is “civil” and not “criminal,” is also useful in this context. (Please refer
1
2
to the analysis in Argument II, supra.) Subject minor submits that the degree to which A. B. 579
3
conflicts with the Juvenile Justice Act, by providing public access to registration information,
4
placing restrictions on juvenile delinquents, lacking any individualized assessment and containing
5
criminal penalties for non-compliance, clearly demonstrates that the legislative enactment is
6
“punitive” in scope.
7
8
9
In Roper v. Simmons, supra, 543 U.S. 551, 125 S. Ct. 1183 (2005), the United States
Supreme Court held that “[t]he Eighth and Fourteenth Amendments forbid imposition of the death
10
penalty on offenders who were under the age of 18 when their crimes were committed.” Id., at
11
578. The Roper Court noted the differences between juveniles under 18 and adults citing scientific
12
13
and sociological studies cited by Simmons and his amici. The American Medical Association, in
its amicus brief, points out that older adolescents behave differently than adults because their
14
15
16
17
18
19
20
21
22
23
minds operate differently, their emotions are more volatile and their brains are anatomically
immature.
Anyone who remembers being a teenager who has been the parent
or caretaker of a teenager, or who has observed adolescent behavior,
knows intuitively that adolescents do not think or behave like adults.
These behavioral differences are pervasive and scientifically
documented. Teens (including, again, the oldest of minors) are
different. Their judgments, thought patterns and emotions are
different from adults’, and their brains are physiologically
underdeveloped in the area that control impulses, foresee
consequences, and temper emotions. They handle information
processing and the management of emotions differently from adults.
Amicus Brief on behalf of the American Medical Association, et. al, Roper v. Simmons, at page 4-
24
25
5 (Supreme Court of the United States, No. 03-633).
26
The Roper Court noted that “[t]hree general differences between juveniles under 18 and
27
adults demonstrate that juvenile offenders cannot with reliability be classified among the worst
28
offenders.” Roper v. Simmons, supra, at 569. Although, the United States Supreme Court in
50
Roper was analyzing the most serious adolescent behavior (i.e. a capital or violent crimes), the
1
2
same analysis applies equally here. The Roper court noted that juveniles under the age of 18
3
cannot with reliability be classified among the worst offenders, yet this legislative enactment has
4
the same result. A. B. 579 has equated juvenile delinquency adjudications with the worst adult sex
5
offenders. Thus, children adjudicated delinquent for the offense of lewdness with a child will be
6
classified with Tier II adult offenders and children adjudicated delinquent for the offenses of
7
8
9
sexual assault and battery with intent to commit sexual assault will be classified with Tier III adult
offenders. The legislature did not take into account that teenagers think differently, process
10
information and handle their emotions differently than adults. The legislature did not take into
11
account that teenagers’ “less-fixed transitory personalities make them less culpable than adult
12
offenders.” Roper v. Simmons, supra, 543 U.S. at 570. Adolescent sex offenders should not be
13
punished and branded to be as culpable as the worst adult sex offenders.
14
CLAIM FOR RELIEF
15
16
The subject minor requests this court grant declaratory relief by finding the statutory
17
changes in A. B. 579 to include adjudications of delinquencies in the definition of a “sex offender”
18
and a “offender of a crime against a child” is unconstitutional and therefore do not apply to the
19
subject minor and those individuals similarly situated. Further, if this Court finds the legislative
20
21
scheme in A. B. 579 does in fact pass constitutional muster, the subject minor respectfully requests
22
this Court stay or enjoin the effective date of the statutes’ application to delinquency adjudications
23
pending any judicial review in this case in order to preserve the status quo and to avoid eminent
24
danger of irreparable harm.
25
26
27
28
51
CONCLUSION
1
2
Application of lifetime supervision, community notification and registration as a sex
3
offender and the other restrictions on a juvenile delinquent is punitive, extreme and
4
counterproductive. The effect is to criminalize behavior, which the in the vast majority of cases
5
the child will outgrow and/or respond appropriately to treatment. These life long sanctions are
6
7
imposed by a system that does not afford all the protections of the criminal justice system. The
8
ineffectiveness and dangers of subjecting juvenile offenders to lifetime supervision and to
9
registration and community notification in the adult system, coupled with the lack of any tangible
10
benefit for such legislation, render the legislation completely irrational and arbitrary. “If the
11
constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least
12
mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate
13
14
governmental interest.” Department of Agriculture v. Moreno, 413 U.S. 528 (1973). Legislation
15
that blindly and irrationally targets politically unpopular groups is intolerable under the United
16
States Constitution, and must be struck down.
17
18
WHEREFORE, the subject minor submits that based upon the foregoing argument, the
Legislative Enactment A. B. 579 is unconstitutional on its face and as applied to the subject minor;
19
this Court must provide declaratory relief that A. B. 579 does not apply to the subject minor and
20
21
22
23
those individuals similarly situated that have been adjudicated delinquent an offense enumerated in
NRS 62F.200.
Dated this 28th day of December, 2007.
24
25
26
27
28
Respectfully submitted,
PHILIP J. KOHN
PUBLIC DEFENDER
PHILIP J. KOHN
PUBLIC DEFENDER
By: _________________________
Jessica W. Murphy
Deputy Public Defender
By: _________________________
Susan D. Roske
Deputy Public Defender
52
CERTIFICATE OF SERVICE
1
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 December ___, 2007 she served a copy of the subject minor’s SUBJECT
5
MINOR’S MOTION FOR A FINDING BY THE COURT THAT THE LEGISLATIVE
6
7
ENACTMENT A. B. 579 IS UNCONSTITUTIONAL AS APPLIED TO ADJUDICATIONS OF
DELINQUENCY by placing said copy in a prepaid envelope, and placed in the United States
8
9
10
Mail, addressed to the persons hereinafter named, at the address stated below.
Addressee:
11
Catherine Cortez Masto
State of Nevada Attorney General
100 N. Carson Street
Carson City, NV 89701-4717
12
13
That on December ___, 2007, she served a copy of the subject minor’s SUBJECT
14
MINOR’S MOTION FOR A FINDING BY THE COURT THAT THE LEGISLATIVE
15
ENACTMENT A. B. 579 IS UNCONSTITUTIONAL AS APPLIED TO ADJUDICATIONS OF
16
DELINQUENCY by placing said copy with the receptionist at the District Attorney’s Office,
17
Juvenile Division file, for the person hereinafter named, at the address stated below.
18
19
20
21
22
Addressee:
Mary Brown, Esq.
Deputy District Attorney
601 North Pecos Road
Las Vegas, NV 89101
By: _________________________________
Employee of the Public Defender’s Office
23
24
25
26
27
28
53