Yesterday the Pennsylvania Supreme Court ruled that a lifetime registration requirement for juvenile sex offenders violates the state constitution because it creates an "irrebutable presumption" that they "pose a high risk of committing additional sexual offenses." In reality, notes Justice Max Baer in a majority opinion joined by all but one of his colleagues, the recidivism rate for people who commit sex offenses as teenagers is quite low: somewhere between 2 percent and 7 percent, which is comparable to the rates for other types of juvenile offenders. Yet Pennsylvania's Sex Offender Registration and Notification Act automatically puts minors 14 or older who commit specified sex offenses (rape, involuntary deviate sexual intercourse, aggravated sexual assault, and attempts or conspiracies involving those crimes) in Tier III, meaning they have to register as sex offenders for life. Although they can petition for removal from the registry after 25 years, the criteria are hard to satisfy, and in the meantime they face onerous requirements that isolate them and impede rehabilitation.
Among other things, Tier III offenders must register in person and be photographed four times a year, notify the authorities at least 21 days before international travel, and pay additional visits within three business days of changing residences, schools, jobs, telephone numbers, or email addresses. Failure to meet any of these requirements is a felony punishable by up to 10 years in prison for a first offense and up to 20 years for a subsequent offense. Inclusion in Pennsylvania's registry, which triggers inclusion in a publicly accessible national registry, is a long-lasting barrier to education, employment, and social integration.
These burdens, Justice Baer notes, undermine a central goal of the juvenile justice system, which is supposed to let people recover from youthful mistakes. He brings that point home by quoting a 2012 opinion from the Ohio Supreme Court:
For a juvenile offender, the stigma of the label of sex offender attaches at the start of his adult life and cannot be shaken. With no other offense is the juvenile's wrongdoing announced to the world. Before a juvenile can even begin his adult life, before he has a chance to live on his own, the world will know of his offense. He will never have a chance to establish a good character in the community. He will be hampered in his education, in his relationships, and in his work life. His potential will be squelched before it has a chance to show itself.
In concluding that such treatment violates juvenile offenders' due process rights, the Pennsylvania Supreme Court had to rely on the state constitution, since registration is not considered a punishment (even though it surely is experienced as one) and federal courts do not recognize reputation as one of the things that cannot be taken away without due process. The court also emphasizes the difference between juvenile and adult offenders, although the same concerns about exaggerated recidivism rates and lifelong burdens apply to both. The court says registration requirements for juvenile offenders should be based on "individualized risk assessment" instead of broad generalizations. Surely that also makes sense for adult offenders, who too often are lumped together based on the sexual nature of their crimes without regard to the threat they pose.
Pennsylvania adopted the law overturned yesterday in response to a congressional mandate enforced by loss of federal grant money. But as Baer notes, there's an out: Under the Adam Walsh Child Protection and Safety Act, a state can keep its grant money if its highest court determines that the federal government's policy preferences violate the state constitution.