Resolution for the Abolition of Mandatory Lifetime Reporting Requirements for Juvenile Offenders ...

23 Pages·2014·0.29 MB·English

PENNSYLVANIA BAR ASSOCIATION
CIVIL AND EQUAL RIGHTS COMMITTEE
RESOLUTION FOR THE ABOLITION OF MANDATORY LIFETIME REPORTING
REQUIREMENTS FOR JUVENILE OFFENDERS UNDER THE SEX OFFENDER
REGISTRATION AND NOTIFICATION ACT
WHEREAS, the Commonwealth of Pennsylvania requires juveniles age fourteen (14) years of
age or older who are adjudicated delinquent for certain offenses to submit to lifetime registration
under the Sex Offender Registration and Notification Act (SORNA); and
WHEREAS, these offenses include an adjudication of delinquency relating to rape, involuntary
deviate sexual intercourse, aggravated indecent assault or offenses substantially similar thereto or
attempt, solicitation or conspiracy to commit the same; and
WHEREAS, under SORNA the juvenile’s information is to be included on the National Sex
Offender Registry and similar databases and identifying information is provided to state and
local authorities where the juvenile offender lives, works, or attends school.
WHEREAS, SORNA’s mandatory lifetime registration requirements fail to conform to the
established purpose of Pennsylvania juvenile laws focusing on the best interests of the child,
rehabilitation, and the goal of guiding the child toward a life as a reasonable and law abiding
adult.
WHEREAS, SORNA’s lifetime registration violates the ban on cruel and unusual punishment,
the proportionality doctrine for juvenile sentencing, rights to reputation and the due process
clauses under the Constitution of the Commonwealth of Pennsylvania and the United States
Constitution.
WHEREFORE, the Pennsylvania Bar Association supports an amendment to the Sex Offender
Registration and Notification Act that would abolish lifetime registration for juveniles who are
adjudicated delinquent under SORNA; and
WHEREFORE, the Report in Support of this resolution attached hereto as “Exhibit A” is
incorporated as if fully set forth herein.
WHEREFORE, BE IT FURTHER RESOLVED that the President or the President’s designee
communicate the Pennsylvania Bar Association’s position to the Pennsylvania Legislators and
the Congressional Delegation and urge our Members of said delegations to support these
concepts and any state legislation to end lifetime registration under SORNA for juvenile
offenders.
Respectfully Submitted,
Bonnie L. Kift
Chair, Civil and Equal Rights Committee
June 12, 2014
*Approved as amended by the Board of Governors on June 27, 2014
**Approved by the House of Delegates on November 21, 2014
PENNSYLVANIA BAR ASSOCIATION CIVIL AND EQUAL RIGHTS COMMITTEE
REPORT IN SUPPORT OF RESOLUTION FOR THE ABOLITION OF MANDATORY
LIFETIME REPORTING REQUIREMENTS FOR JUVENILE OFFENDERS UNDER
THE SEX OFFENDER REGISTRATION NOTIFICATION ACT (SORNA)

The Pennsylvania Bar Association Civil and Equal Rights Committee requests
amendment of Pennsylvania’s Sex Offender Registration Notification Act (SORNA) provisions
regarding juvenile offenders. The provisions require mandatory lifetime registration for juvenile
offenders in violation of the Federal and Pennsylvania State Constitutions, United States
Supreme Court precedent and Pennsylvania State Law. In supporting amendment of the
juvenile offender provisions, Pennsylvania would join numerous other state legislatures and non-
government who have recognized that the focus of juvenile proceedings is rehabilitation, not
retribution.
I. BACKGROUND
On December 20, 2011 Pennsylvania Governor Tom Corbett signed Senate Bill No.
1183, Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), into law.1
SORNA was enacted in Pennsylvania in response to federal requirements under the Adam Walsh
Child Protection and Safety Act of 2006 (Act). Title I of the Act charged all states with adopting
and implementing its provisions for sex offender registration and notification or face losing ten
percent of their criminal justice funding under a program known as the Byrne Justice Assistance
Grant. 2

1 See S.B. 1183, 2011- 2012 Gen. Assemb., Reg. Sess. (Pa. 2012) [hereinafter S.B. 1183] available at
http://www.legis.state.pa.us/cfdocs/billinfo/bill_history.cfm?syear=2011&sind=0&body=S&type=B&bn=1183.
2 See In the Interest of J.B. et al, No. CP-67-JV-0000726-2010, 8 (Pa. Ct. Com. Pl. Nov. 4, 2013) available at
http://www.jlc.org/system/files/case_files/2013-11-
04%20Juvenile%20SORNA%20Opinion%20YORK%20COUNTY.pdf?download=1 See Appendix I.
1
Although the Act requires lifetime registration for individuals adjudicated delinquent for
a Tier III offense3 and requires substantial compliance by a state or have the state face a ten
percent loss of funding4, the Federal Statute also provides an exception if implementation of
provisions of the Act would cause a violation of the state’s constitution. At the discretion of the
United States Attorney General, a state may implement reasonable alternative provisions in place
of any provisions of the Act which, if implemented by the state, would place the state in
violation of its own constitution as determined by the state’s highest court.5

In 2012 Pennsylvania stood to lose approximately $1.6 million in federal funding for non-compliance. Id. at n.1.
The Adam Walsh Child Protection and Safety Act of 2006 is a federal law; it’s Title I SORNA requirements were
supposed to be implemented in all states and U.S. territories by July 17, 2011. Presently, only 17 states and three
territories have implemented SORNA provisions. See OFFICE OF JUSTICE PROGRAMS, OFFICE OF SEX OFFENDER
SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING, http://ojp.gov/smart/sorna.htm (last
visited May 5, 2014).
3 See 42 U.S.C.A. § 16915(a)(3), (b)(1)-(2)
4 See 42 U.S.C.A. §16925 (a) 
5 See 42 U.S.C.A. 16925 (b)
(b) State constitutionality
(1) In General: When evaluating whether a jurisdiction has substantially implemented this
subchapter, the Attorney General shall consider whether the jurisdiction is unable to substantially
implement this subchapter because of a demonstrated inability to implement certain provisions
that would place the jurisdiction in violation of its constitution, as determined by a ruling of the
jurisdiction’s highest court.
(2) Efforts: If the circumstances arise under paragraph (1), then the Attorney General and the
jurisdiction shall make good faith efforts to accomplish substantial implementation of this
subchapter and to reconcile any conflicts between this subchapter and the jurisdiction’s
constitution. In considering whether compliance with the requirements of this subchapter would
likely violate the jurisdiction’s constitution or an interpretation thereof by the jurisdiction’s
highest court, the Attorney General shall consult with the chief executive and chief legal officer of
the jurisdiction concerning the jurisdiction’s interpretation of the jurisdiction’s constitution and
rulings thereon by the jurisdiction’s highest court.
(3) Alternative Procedures: If the jurisdiction is unable to substantially implement this subchapter
because of a limitation imposed by the jurisdiction’s constitution, the Attorney General may
determine that the jurisdiction is in compliance with this chapter if the jurisdiction has made, or is
in the process of implementing [1] reasonable alternative procedures or accommodations, which
are consistent with the purposes of this chapter.

2
SORNA specifies three tiers of sexual offenses. An individual convicted of a Tier I
sexual offense must register as a sex offender for fifteen years.6 An individual convicted of a
Tier II sexual offense must register for a period of twenty-five years.7 SORNA mandates lifetime
sex offender registration for adults convicted of Tier III offenses, all juvenile offenders as
defined under SORNA, 8 sexually violent delinquent children, and sexually violent predators.9
During SORNA’s hurried passage through the Pennsylvania legislature, the effect of lifetime
registration for juvenile offenders was given minimal consideration.10 Implementation of the

6 42 Pa. C.S.A. § 9799.15(a)(1). See Appendix II. For a complete list of Tier I crimes under SORNA see 42 Pa.
C.S.A. § 9799.14(b).
7 42 Pa. C.S.A. § 9799.15 (a)(2). See Appendix II. For a complete list of Tier II crimes under SORNA see 42 Pa.
C.S.A. § 9799.14 (c).
8 A juvenile offender under Pennsylvania’s SORNA is defined as follows:
(1) An individual who was 14 years of age or older at the time the individual
committed an offense which, if committed by an adult, would be classified as an
offense under 18 Pa. C.S. § 3121 (relating to rape), 3123 (relating to involuntary
deviate sexual intercourse) or 3125 (relating to aggravated indecent assault) or
an attempt, solicitation or conspiracy to commit an offense under 18 Pa. C.S. §
3121, 3123 or 3125 . . .[and is adjudicated delinquent for such an offense or has
been adjudicated delinquent for such an offense and on the effective date of this
section is subject to the jurisdiction of the court on the basis of that adjudication
of delinquency] (2) An individual who was 14 years of age or older at the time
the individual committed an offense similar to an offense under 18 Pa. C.S. §
3121, 3123 or 3125 or an attempt, solicitation or conspiracy to commit an
offense similar to an offense under 18 Pa. C.S. A. § 3121, 3123 or 3125 under
the laws of the United States, another jurisdiction or a foreign country and was
adjudicated delinquent for such an offense. See 42 Pa. C.S.A. § 9799.12 (1)-(2).
See Appendix III.
9 42 Pa. C.S.A. § 9799.15(a)(1)-(7). See Appendix II.
10 SORNA was first considered in the House on December 5, 2011 and passed on December 13, 2011. See S.B.
1183 supra note 1. It was referred to Senate committee on December 14, 2011 and signed into law on December
20, 2011. Id. The only comments made in the final Senate meeting were by two senators who both expressed
concerns over the speed of SORNA’s passage and the juvenile provisions. See 74 PA. LEGISLATIVE J. at 1371-74
(Dec. 2011) available at http://www.legis.state.pa.us/WU01/LI/SJ/2011/0/Sj20111214.pdf See Appendix IV.
Senator Mary Jo White from Venango said:
I have some concerns, however. . . for the first time this bill affects juveniles,
and I know when the bill left this Chamber, I was satisfied and happy with the
provisions as they related to juveniles. My problem is that I have not had an
opportunity to review the extensive changes that were made in the House, and I
was not part of the negotiations so I am not familiar with it. . . I also note that
there are mandatory minimum sentences in here for failure to register, which
may very well be appropriate in certain cases, certainly cases with adult
offenders, but I question how that really should apply to juveniles. I would
prefer to have judges do that sentencing. So for that reason, I will cast a “no”
vote. Id. at 1373.
Senator Jim Ferlo from Allegheny said:
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juvenile offender provisions began on December 20, 2012 and applied retroactively and
prospectively. In addition to lifetime sex offender registration, the law requires juvenile
offenders to appear in person at an approved registration site every ninety (90) days to be
photographed along with numerous other requirements for which non-compliance is a felony and
carries a minimum three-year prison term for first offenses.11 The juvenile offender’s
information will “be included on the National Sex Offender Registry, the National Crime
Information Center, and any other database established by the Attorney General, Department of
Justice, or United States Marshall Service,” it will also be provided to authorities in jurisdictions
in which the juvenile offender lives, works, or attends school, the U.S. Attorney General, and the
chief law enforcement officer of the police department of the municipality in which the juvenile
offender lives, works, or attends school.12

. . . likewise, I will be casting a “no” vote. . . I support the intent of the
legislation and probably about 80 percent of this legislation. But I do think it is
a little bit of a rush to judgment. I do think that we should have had a little more
deliberation and opportunity for public comment and public hearing on the
actual wording on which we are about to vote.
I have a concern about criminalizing immoral and inappropriate
conduct, if not illegal, on the part of juveniles, and what this bill purports to do
through the judiciary process and through the criminal justice process. . . There
is a lengthy discussion here about how juveniles are reformed. I will not get into
a lengthy debate, but the fact of the matter is, I think we have rushed to
judgment on this bill and need to be a little more reflective.
I do not know if it is true that both New York State and the State of
Texas have decided not to implement this language because of either the [cost]
or [implementation problems], or if they have also raised legitimate concerns as
it relates to juvenile matters, matters that I believe the high court both at the
Supreme Court level as well as in various State courts, have begun to explicitly
distinguish and differentiate between the actions of juveniles verses those who
have reached the age of 18 and are considered adults. Id. at 1373-74.
The Senate voted to accept the House’s changes in a 48-2 passage. Id. at 1374.

11 See In the Interest of J.B. et al, No. CP-67-JV-0000726-2010, 9-15 (Pa. Ct. Com. Pl. Nov. 4, 2013) available at
http://www.jlc.org/system/files/case_files/2013-11-
04%20Juvenile%20SORNA%20Opinion%20YORK%20COUNTY.pdf?download=1 (stating all reporting
requirements and penalties to which juvenile offenders are subject under SORNA).
12 Id. at 13. (recognizing breadth of law enforcement agencies and other organizations with access to registry).
Notably, juvenile offenders may petition to be removed from the registry after twenty-five years. See 42 Pa. C.S.A.
§ 9799.17(a)(1)-(4). For the twenty-five year period prior to filing the petition, the individual must not have been
4
On November 4, 2013, York County Court of Common Pleas Judge Uhler handed down
a decision In the Interest of J.B. et al, holding that Pennsylvania’s SORNA requirements for
juvenile offenders are unconstitutional as cruel and unusual punishment under the Federal and
Pennsylvania Constitutions as well as a violation of the Due Process Clauses of the Federal and
Pennsylvania Constitutions and the Ex Post Facto Clauses of the Federal and Pennsylvania
Constitutions.13 Monroe County’s Judge Worthington ruled on January 26, 2014 that lifetime
registration for the petitioning juvenile offenders is unconstitutional “because it infringes on the
youths’ fundamental right to reputation and creates an irrebuttable presumption of dangerousness
in violation of the Pennsylvania’s Constitution’s guarantee of due process” in In the Interest of
B.B. et al.14 And on February 10, 2014 Lancaster County Court of Common Pleas Judge
Workman held in In the Interest of W.E. et al, that SORNA is unconstitutional under the
Pennsylvania Constitution’s right to reputation.15

convicted of any crime as serious as or more serious than a second-degree misdemeanor. Id. at § (a)(2)(i).
Additionally, the individual must have successfully completed court-ordered supervision without revocation and a
recognized treatment program. Id. at § (a)(3)-(4).
13 See J.B. et al, No. CP-67-JV-0000726-2010, at 20 - 38. For a discussion of SORNA’s provisions relating to
juvenile offenders as cruel and unusual punishment see Id. at 32-36; for a discussion of SORNA’s due process
violations see Id. at 36-38; for a discussion of SORNA’s unconstitutionality as an ex post facto law see Id. at 20-31.
The Federal Constitutional provisions found to be violated by SORNA are as follows: The Eighth Amendment ban
on cruel and unusual punishment. U.S. CONST. amend. VIII. The Fifth Amendment right to Due Process. U.S.
CONST. amend. V. The ban on Ex Post Facto laws. U.S. CONST. art. I, § 9 cl. 3. The Pennsylvania Constitutional
provisions found to be violated by SORNA are as follows: The ban on cruel and unusual punishment. PA. CONST.
art. I, § 13. The right to Due Process. PA. CONST. art. I, § 9. The ban on Ex Post Facto laws. PA. CONST. art. I, §
17.
14 See In the Interest of B.B., No. 248 JV 2012, 32 (Pa. Ct. Comm. Pl. Jan 16, 2014) available at
http://www.jlc.org/sites/default/files/topic_related_docs/Monroe%20County%20SORNA%20Opinion.pdf (holding
Megan’s Law IV as applied to petitioner juvenile offenders unconstitutional under Pennsylvania’s fundamental right
to reputation and ordering removal of petitioners’ names and photographs from Megan’s Law registration). See
Appendix V. See also Juvenile Law Center Wins Second Ruling Declaring Pennsylvania’s Juvenile Sex Offender
Registration Requirements Unconstitutional, JUVENILE LAW CENTER (Jan. 17, 2014) available at
http://www.jlc.org/blog/juvenile-law-center-wins-second-ruling-declaring-pennsylvanias-juvenile-sex-offender-
registrati (quoting author’s synopsis of court’s holding).
15 See In the Interest of W.E., No. J1085-2008, 13-14 (Pa. Ct. Comm. Pl. Feb. 10, 2014) available at
http://www.jlc.org/system/files/case_files/Lancaster%20County%20SORNA%20Opinion.pdf?download=1
(recognizing that SORNA’s juvenile offender provisions violate Pennsylvania’s right to reputation through due
process violation). See Appendix VI. See also Third Trial Court Declares Lifetime Sex Offender Registration for
5
II. THE HISTORY OF JUVENILE SENTENCING UNDER FEDERAL LAW
The juvenile court system was established in the United States during the nineteenth
century with the goal of rehabilitation of the juvenile rather than punishment — focusing on the
“best interests of the child.” Cases were treated as non-criminal actions “and the ultimate goal
was to guide a juvenile offender toward a life as a reasonable, law-abiding adult.”16 In 1966, the
Supreme Court echoed these goals in Kent v. U.S., stating that juvenile courts were created to
“provide guidance and rehabilitation for the child and protection for society, not to affix criminal
responsibility, guilt, and punishment.”17
A. The Supreme Court’s Analysis of Juvenile Sentencing Under the Federal
Constitution
The Federal Constitutional provisions most often implicated in juvenile offender
jurisprudence are the Fifth Amendment right to due process (incorporated as applicable to the
states through the Fourteenth Amendment) and the Eighth Amendment prohibition against cruel
and unusual punishment.18 Although the juvenile courts initially aimed to hold less formal

Juveniles Unconstitutional, Juvenile Law Center (Feb. 18, 2014) http://www.jlc.org/blog/third-trial-court-declares-
lifetime-sex-offender-registration-juveniles-unconstitutional
In Lancaster County, where three juveniles were convicted of sexual offenses
and faced lifetime sex offender registration, Judge Workman ruled that SORNA
violates these juveniles' rights under the Pennsylvania Constitution. Specifically,
the court found that lifetime sex offender registration violates their right to
reputation because it imposes a stigma and a presumption of dangerousness
on those juveniles, who must directly and indirectly notify their
communities of their registration status.” Id.
16 See ABA Div. for Pub. Educ., The History of the Juvenile Justice System, 5 (no date provided) pdf available at
http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf
17 Kent v. U.S., 383 U.S. 541, 554 (1966) (quoting Court’s language regarding role of juvenile courts). In Kent, the
juvenile court, which had jurisdiction over sixteen-year-old Morris Kent for a series of housebreakings waived
jurisdiction to the criminal court when Kent admitted to robbing and raping a woman upon interrogation. Id. at 543.
Kent’s attorney opposed the waiver and attempted to offer evidence that Kent was a candidate for rehabilitation if
given proper hospital treatment for his severe psychopathy. Id. at 544. The juvenile court did not respond to Kent’s
attorney’s motions and without a hearing, waived jurisdiction to the criminal court. Id. at 546. The Supreme Court
granted certiorari and ruled that Kent was entitled to a hearing and to a statement of the reasons for the juvenile
court’s decision to waive jurisdiction. Id. at 561. For a discussion of SORNA’s constitutionality and legality under
Pennsylvania law, see infra notes 45-52 and accompanying text.
18 The Fifth Amendment of the United States Constitution provides:
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proceedings than criminal courts, in In re Gault, the Supreme Court held that juveniles enjoy the
same constitutional guarantees of due process as adults under the Fifth Amendment.19 The Court
recognized that juvenile adjudications sometimes impose harsher penalties on juveniles because
the Fifth Amendment’s due process protections were not a requirement of juvenile proceedings
yet the end result was often a child’s commitment to an institution of some kind - a deprivation
of life, liberty, and property without due process of law.20
The Supreme Court has also noted that there is a fundamental difference between
children and adults in terms of culpability, which can lead to Eighth Amendment violations in
sentencing juvenile offenders. The Court’s decision in Eddings v. Oklahoma recognized that a
minor could not be sentenced to death without all mitigating factors first being considered
including and especially the juvenile offender’s age. Failing to do so would be cruel and unusual
punishment in violation of the Eighth Amendment.21 The Court took its decision in Eddings a
step further in its 1988 decision Thompson v. Oklahoma, a plurality opinion finding that the

No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in actual service in time of war
or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use,
without just compensation. U.S. CONST. amend. V.
The Eighth Amendment to the United States Constitution provides: “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST.
amend. VIII.
19 See In re Gault, 387 U.S. 1, 26 (1967) (holding that fifteen-year-old Gerald Gault was entitled to and denied due
process of law). The Supreme Court noted, “it would be extraordinary if our Constitution did not require the
procedural regularity and the exercise of care implied in the phrase ‘due process.’ Under our Constitution, the
condition of being a boy does not justify a kangaroo court.” Id. at 27-28. See also Breed v. Jones, 421 U.S. 519,
541 (1975) (opining that juveniles adjudicated delinquent in juvenile court cannot then be tried as adults in criminal
court for the same crime). Allowing such procedure would be a double jeopardy violation of the Fifth Amendment.
Id. at 541.
20 See In re Gault, 387 U.S. 1 at 27-30 (explaining the catch-22 that exists in juvenile proceedings – by attempting to
make the process less harsh, certain constitutional safeguards are not triggered and can therefore result in more
severe penalties than if formal procedure had been followed).
21 See Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (holding that juvenile petitioner’s death sentence be vacated
where, as a matter of law, state court refused to consider mitigating circumstances in petitioner’s case).
7
Eighth Amendment prohibits the execution of a person less than sixteen years of age at the time
of his offense.22 The Court noted, “[t]he juvenile's reduced culpability, and the fact that the
application of the death penalty to this class of offenders does not measurably contribute to the
essential purposes underlying the penalty, also support the conclusion that the imposition of the
penalty on persons under the age of 16 constitutes unconstitutional punishment.”23
Ultimately, in 2005, the Supreme Court handed down a decision in Roper v. Simmons
that the Eighth Amendment protects all juveniles from capital punishment. Justice Anthony
Kennedy wrote, “when a juvenile offender commits a heinous crime, the State can exact
forfeiture of some of the most basic liberties, but the State cannot extinguish life and his
potential to attain a mature understanding of his own humanity.”24
Importantly, in recent years, the Supreme Court has extended this reasoning to the
constitutionality of juvenile offenders being sentenced to life in prison without parole.25 In 2010
the Court in Graham v. Florida held that held that the Constitution’s ban on cruel and unusual
punishment “prohibits the imposition of a life sentence on a juvenile offender who did not
commit homicide.”26 In reaching its decision, the Court discussed the need for a categorical rule
as applied to all juveniles, focusing on a child’s less culpable mindset and greater potential for
rehabilitation.

The juvenile should not be deprived of the opportunity to achieve
maturity of judgment and self-recognition of human worth and
potential. . . . [l]ife in prison without the possibility of parole gives
no chance for fulfillment outside prison walls, no chance for

22 See Thompson v. Oklahoma, 487 U.S. 815, 815 (1988) (stating the decision of the Court).
23 Id. at 816 (quoting Court’s language regarding how imposing the death penalty on a juvenile is unconstitutional).
24 Roper v. Simmons, 543 U.S. 551, 554 (2005) (holding that the Eighth Amendment prohibits imposition of the
death penalty for juvenile offenders under eighteen years of age at the time of their offenses).
25 See generally Graham v. Florida, 560 U.S. 48, 48 (2010).
26 Id. at 80 (stating Court’s ultimate holding).
8