Special concerns involving juvenile sex offender registration include (A) the procedural safeguards offered a juvenile prior to adjudication and (B) imposing a lifetime registration requirement despite the extraordinary capacity of juveniles for rehabilitation.
A. Procedural Safeguards Offered a Juvenile Prior to Adjudication.
Whether a state can require lifetime juvenile sex offender registration without offering a juvenile a jury trial has never been addressed by the Supreme Court of the United States or the Supreme Court of South Carolina.
Although the Supreme Court of the United States has considered challenges to states requiring adults to register as sex offenders, Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), the High Court left open the possibility of a future substantive due process challenge to sex offender registries. Connecticut Dept. of Public Safety, 538 U.S. at 8 (“Because the question is not properly before us, we express no opinion as to whether Connecticut’s Megan’s Law violates principles of substantive due process.”). The Supreme Court more recently declined to consider a challenge of a juvenile sex offender registry because the case was rendered moot by Montana Supreme Court’s answer to certified question that juvenile would not have to register as sex offender following expiration of term of juvenile’s supervision. U.S. v. Juvenile Male, ___ U.S. ___, 131 S.Ct. 2860 (2011).
Although the South Carolina Supreme Court has held sex offender registration does not violate due process, Hendrix v. Taylor, 353 S.C. 542, 579 S.E.2d 320 (2003), and extended that holding to juveniles, In re Ronnie A., 355 S.C. 407, 410, 585 S.E.2d 311, 312 (2003), our Court has not considered (1) the difference in procedural safeguards available to juveniles in Family Court or (2) the effect of the more recently enacted punitive aspects of sex offender registration.
The Supreme Court of the United States has observed that the consequences from sex offender registration result not from the registry but rather “from the fact of conviction, already a matter of public record.” Smith v. Doe, 538 U.S. at 101, 123 S.Ct. at 1151. In South Carolina, a juvenile adjudication is not the same as a conviction. State v. Ellis, 345 S.C. 175, 547 S.E.2d 490 (2001). Juveniles are prosecuted in Family Court, and the “family court does not conduct jury trials.” In re Vincent J., 333 S.C. 233, 237, fn. 3, 509 S.E.2d 261, 263, fn. 3 (1998). The Family Court’s “objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment.” Kent v. U.S., 383 U.S. 541, 554, 86 S.Ct. 1045, 1054 (1966). The Family Court, therefore, is required to consider the best interests of the juvenile, and the consequences of a juvenile adjudication typically do not extend beyond the twenty-first birthday. See S.C. Code §§63-19-1410, 1440.
Juveniles enjoy the protections of the Bill of Rights and the Fourteenth Amendment, with limited exceptions. In Re Gault, 387 U.S. 1 (1967). A significant exception, however, is the right to a jury trial, but the absence of a jury trial is not as detrimental to a juvenile when adjudication remains confidential and the consequences of the adjudication end at the twenty-first birthday. It is fundamentally unfair for the State to require lifetime sex offender registration without affording the juvenile the basic constitutional safeguards, such as the right to a jury trial.
Sex offender registration, therefore, exposes a person to lifelong penalties. “[A]ny fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt.” State v. McGrier, 378 S.C. 320, 331, 663 S.E.2d 15, 20-21 (2008) (emphasis supplied by the Court) (citing Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 863-64, 166 L.Ed.2d 856 (2007)).
Because a juvenile does not have the right to a jury trial, the Family Court violates due process by imposing a penalty that continues beyond the juvenile’s twenty-first birthday.
Requiring sex offender registration without offering a jury trial also violates equal protection. South Carolina’s sex offender registry places the same requirements on adults and juveniles. Juveniles, however, are denied constitutional protections afforded to adults. “The right to trial by jury is a fundamental right.” Lane v. Gilbert Const. Co., Ltd. 383 S.C. 590, 600, 681 S.E.2d 879, 884 (2009). See also State v. Thrift, 312 S.C. 282, 296, 440 S.E.2d 341, 349 (1994) (“prohibition against compelled self-incrimination is a basic constitutional mandate which is not a mere technical rule, but rather, a fundamental right of every citizen in our free society.”).
Denying a juvenile the right to a jury trial is a violation of equal protection that cannot withstand strict scrutiny. See HHHunt Corp. v. Town of Lexington, 389 S.C. 623, 634, fn. 3, 699 S.E.2d 699, 704, fn. 3 (Ct. App. 2010) (strict scrutiny, not rational basis, applies when a fundamental right is affected).
B. Imposing a Lifetime Registration Requirement Despite the
Extraordinary Capacity of Juveniles for Rehabilitation.
In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court categorically prohibited imposing the death penalty on a defendant who committed the crime before age eighteen. Next, in Graham v. Florida, ___ U.S. ___, 130 S.Ct. 2011 (2010), the Supreme Court held that sentencing a juvenile who did not commit a homicide to life imprisonment without the possibility of parole violated the Eighth Amendment. More recently, in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), the Supreme Court prohibited mandatory life without parole sentences for juveniles and required an individualized sentencing determination before life imprisonment may be imposed. These cases recognize that juvenile offenders are less culpable than adult offenders because juvenile brain development is not complete and juveniles have the opportunity to mature and reform.
Graham and Miller should be extended to bar lifetime juvenile sex offender registration. “[A] child’s character is not as well formed as an adult’s; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].” Miller at 2464 (internal quotations omitted). Requiring juveniles to register as sex offenders can be detrimental to their maturing into adults. South Carolina’s lifetime registration requirement does not consider this constitutional difference between juveniles and adults because it is premised on the inability to reform. The public registration requirement restricts the juvenile’s ability to obtain employment and realize his or her full potential. As a result, the registration requirement hinders the juvenile’s ability to reform and mature.
In May 2013, Human Rights Watch published Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US. This report detailed the challenges facing juveniles because of the sex offender registration requirement.
Juveniles should not be required to register as sex offenders. Whenever possible, criminal defense lawyers should resolve juvenile cases without the Family Court imposing such a requirement. In appropriate cases, objections can be raised to the absence of a right to a jury trial and under the Supreme Court of the United States’ precedent in Graham and Miller.
Editorial Note: The South Carolina Association of Criminal Defense Lawyers invited Charles Grose to speak on “Finally Finishing Forensic Interviews” at the 8th Blues, Bar-B-Q, and Bar CLE, on July 12, 2013 in Greenwood, South Carolina. This blog post is the fourth of four post released to coincide with this seminar. Click these links to read “Finally Finishing Forensic Interviews? No, but Why and What Comes Next?,” “Independent Mental Evaluations of Children Alleging Sexual Abuse,” and “South Carolina’s Sex Offender Registry has Turned into Punishment.”