« When and how will DOJ Sentencing and Corrections Working Group report on its conclusions? | Main | FAMM survey on views about sentencing reform »

September 10, 2009

Ninth Circuit panel finds retroactive part of SORNA unconstitutional

The Ninth Circuit, in an lengthy panel opinion authored by Judge Reinhardt, today declares in US v. Juvenile Male, No. 07-30290 (9th Cir. Sept. 10, 2009) (available here) that part of the federal Sex Offender Registration and Notification Act is unconstitutional as applied to former juvenile offenders. Here is a key paragraph from the start of the unanimous panel opinion:

We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution.  In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional.

For a host of reasons, this ruling seems likely to get considerable attention and scrutiny from federal officials in other branches as well as perhaps from the full Ninth Circuit and/or the Supreme Court.  And I hope to have time to comment on the ruling in some detail once I get a chance to read it closely tonight.

September 10, 2009 at 01:46 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ninth Circuit panel finds retroactive part of SORNA unconstitutional:


Oh please, the entire sex offender registration regime violates the ex post facto clause. It's a damnable lie that it doesn't. All that happened here is that he got a first crack at telling the truth and now everyone will be in a tizzy about it.

Of course his underlying assertion that somehow it's more punitive for this class than for other classes don't hold water. But that because the assertion that it's not punitive for any class doesn't hold water. All he's trying to do is mitigate a little the harm that has been done by the lies spoken form the bench by people before him. I respect him for that effort, even if his logic is horsehit.

Posted by: Daniel | Sep 10, 2009 4:01:02 PM

"Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused." (p 13151)

Contradiction, anyone?

"They are going to feel if they are living in Nevada they might as well be living in jail," [Gov. Jim] Gibbons said.

It takes a few years before politicians are transparent. Someone could fill a brief with quotes like this from all over the country.

Posted by: George | Sep 10, 2009 4:22:09 PM

Daniel, with all due respect, who is "he" and "him"?

Posted by: George | Sep 10, 2009 4:24:17 PM

As much as I hate to say this, I think Reinhardt's right about this.

Posted by: federalist | Sep 10, 2009 4:52:31 PM

Reinhardt is right. Of course, sex offender registration is punishment. If it weren't, why would sex offender registration be such a "big stick" in plea negotiations?

Posted by: Mike | Sep 10, 2009 5:02:51 PM

"Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused.""

works for me! of couse the only thing public about the registry info is the original criminal information. EVERYTHING afterward is BLACKMAILED from invididuals on pain of PRISON TERMS. So how is it PUBLIC.

as for "transparency" well how about some of that for the 400,000 or 500,000 thousand individuals who were added to the registry AFTER the law was passed. Where's their transparency?

Posted by: rodsmith | Sep 10, 2009 5:03:07 PM


Reinhardt. He wrote the opinion that Doug wrote the post about and to which my comment refers.

Posted by: Daniel | Sep 10, 2009 6:47:23 PM

Thanks for the clarification, Danial. In fairness to the Ninth though, didn't the Ninth find the Alaska Doe case ex post facto and unconstitutional? I believe the SCOTUS overturned that opinion.

Over at Volokah the Ninth are scary liberals about to destroy America, as usual.

Posted by: George | Sep 10, 2009 8:46:13 PM

My attorney tells me, "The decision is great but the confidentiality attaching historically to juvenile proceedings IS a distinction. And the Supreme Court will probably review it, and the Supreme Court often reverses the 9th Circuit. It can be cited for now as support, but it is more a cherry bomb than dynamite at this point."

Posted by: Letsgetreal | Sep 11, 2009 9:45:07 AM

yes they did overrule alaska. Of course alaska just resently ruled AGAIN it was illegal under their law to be applied retoactivity becasue of all the little "add-on's

Basiclly told the supreme's to go to h...l in their state.

Posted by: rodsmith | Sep 11, 2009 5:29:38 PM

Adjudicated Juveniles all across this nation are put on "convicted" sex offender registries and being forced to sign legal documents in which states they are "convicted" sex offenders by order of Magen's Law, when registration of Adjudicated juvenile offenders does NOT count as a "conviction" under Megan's Law. What a mess!

Megan's Law:
Office of the Attorney General: http://cl.bna.com/cl/19990120/2196.htm
[A.G. Order No. 2196-98]
RIN 1105-AA56

Megan's Law; Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, as Amended
EXCERPTS: 2. Juvenile delinquents and offenders. The Act's registration requirements depend in all circumstances on conviction for certain types of offenses. Hence, states are not required to mandate registration for juveniles who are adjudicated delinquent--as opposed to adults convicted of crimes and juveniles convicted as adults--even if the conduct on which the juvenile delinquency adjudication is based would constitute an offense giving rise to a registration requirement if engaged in by an adult. However, nothing in the Act prohibits states from requiring registration for juvenile delinquents, and the conviction of a juvenile who is prosecuted as an adult does count as a conviction for purposes of the Act's registration requirements.

Posted by: Honest Opinion | Feb 1, 2010 11:12:04 PM

A person with a sex offense in their history is not a "sex offender." They have required treatment (by judgment), which allows them to become moral and productive members of their community after the fact. I am a person with a sex offense, not a sex offender. If you were once a farmer and retired or changed stations in life, would you still be farming? The SORNA and other state statutes on registry laws were not thought out very well. They can't even get their grammar correct... :-){offense, not offender} I am currently in the proccess of filing for declaratory and injunctive relief in the Ninth Circuit, to be removed from the state and fedral registries. Eric Holder--our US Attorney General--is a defendant in my case. you can view the Complaint (Title 42 sec 1983) at http://soadvocate.webs.com

Posted by: Laserbeam | Feb 26, 2010 12:32:48 PM

Where's S.cotus when you need him (or her)? Does my proposal to seize members of the family's property "work corruption of Blood"?

Posted by: Jordan Retro | Nov 14, 2010 1:41:51 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB