February 01, 2015

State Constitution Prohibits Automatic Registration of Juvenile Sex Offenders

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re J.B., 2014 WL 7369785 (Pa.).


State Sex Offender Registration and Notification Act, which provided for automatic registration of youth found delinquent for certain sex offenses violated due process under state constitution because it failed to allow for individual determination of a youth’s risk to reoffend and was based on false assertion that youth sex offenders had a high recidivism rate. 

Seven youth were adjudicated delinquent for sex offenses. The youth appealed, challenging provisions of the state Sex Offender Registration and Notification Act (SORNA). Two trial courts had found the lifetime registration provision unconstitutional as applied to the juveniles. 

The Pennsylvania Supreme Court first reviewed the SORNA. The SORNA was enacted in response to the Federal Adam Walsh Act, which required states that accepted certain grants to require registration of juvenile sex offenders. The SORNA also aimed to protect the community by having oversight over sex offenders. 

The act was limited to juveniles 14 and older who were found delinquent under the elements of rape, involuntary deviate sexual intercourse, aggravated indecent assault, or attempts, solicitations or conspiracies to commit those offenses. Further, the act applied retroactively if a juvenile still remained under juvenile court jurisdiction.

Juveniles registered under the act are subject to annual or more frequent reporting requirements, depending on the offense type. Photos are taken when they report into the registry. Though Pennsylvania does not publish the photos publicly, it distributes them to other law enforcement agencies that may post them publicly. 

Next the court reviewed the two trial courts’ analyses. It noted the York trial court emphasized the state juvenile code’s goal was restorative justice, not punishment. It also had reviewed U.S. Supreme Court precedent finding juveniles constitutionally situated differently than adults. In particular, prior cases found juveniles, due to immaturity, were more impulsive, more vulnerable to external influences, and their behaviors/personalities were still developing. Their lower recidivism rates were shown through research. The trial court ultimately found the SORNA did not adequately account for the differences regarding juveniles’ lessened culpability and great potential for rehabilitation.

Further, both trial courts found the irrebuttable presumption that a juvenile had a high recidivism rate and should be registered violated due process by failing to consider individual characteristics of each youth. 

On appeal, the state relied on prior precedent finding an irrebuttable presumption in sex offense cases was not unconstitutional. The court reasoned that registration does not deprive an individual of life, liberty, or property. However, the court noted, the Pennsylvania Constitution provides further protection for less tangible deprivations including reputation. 

In contrast, the juveniles argued on appeal that a registration requirement should be conditioned on an individualized assessment of the youth’s likelihood to reoffend. They also contended the automatic registration is contrary to the purpose of the juvenile code’s rehabilitation goals since a registered offender will have difficulty obtaining employment, education, and housing. 

The Pennsylvania Supreme Court agreed with the juveniles. While reputation may not be a right under federal law, it is under the Pennsylvania Constitution. The court also found the research compelling. It noted that recidivism rates for juvenile sex offenders were similar to those of other juveniles found delinquent for nonsexual crimes. Last, there is a reasonable alternative that will protect society —that youth can be individually assessed for their risk of repeat sexual violence. 

For those reasons, the Pennsylvania Supreme Court held the irrebuttable presumption violated the youths’ rights to due process under the state constitution.