IN RE C.P.
No. 2010-0731
Supreme Court of Ohio
Submitted February 16, 2011—Decided April 3, 2012.
131 Ohio St.3d 513, 2012-Ohio-1446
PFEIFER, J.
{¶ 1} In this case, we determine the constitutionality of
{¶ 2} On June 26, 2009, a multicount complaint was filed in Athens County Juvenile Court against appellant, C.P., who was 15 years old at the time. The complaint alleged that C.P. was a delinquent child and charged him with two counts of rape and one count of kidnapping with sexual motivation, each count a first-degree felony if committed by an adult. The victim was a six-year-old boy, a relative of C.P.
{¶ 3} The state immediately moved the juvenile court to transfer jurisdiction to the Athens County Court of Common Pleas, General Division. On July 29, 2009, the juvenile court held a hearing pursuant to
{¶ 4} At a hearing held on August 24, 2009, the court denied the states motion to transfer jurisdiction over C.P. to the general division to be tried as an adult. The judge stated,
I think we can have our best chance of working with [C.P.] in the juvenile system and I dont think everything has been exhaustively tried there. It doesnt mean that there wont be consequences and it doesnt mean that there wont be loss of freedom there certainly will be if convicted of this offense [sic], but I think we have time within the juvenile system and we have resources within the juvenile system to work with this boy. So, I deny the states motion for transfer and well continue to work with this within the juvenile system.
{¶ 5} In ruling against transfer, the judge cited the factors in
{¶ 6} C.P. thus remained under the jurisdiction of the juvenile court. The state sought to have C.P. sentenced as a serious youthful offender (“SYO“) pursuant to
{¶ 8} Further, the court advised C.P. of the duties and classification automatically imposed upon him by
You are required to register in person with the sheriff of the county in which you establish residency within three days of coming into that county, or if temporarily domiciled for more than three days. If you change residence address you shall provide written notice of that residence change to the sheriff with whom you are most recently registered and to the sheriff in the county in which you intend to reside at least 20-days prior to any change of residence address. * * * You are required to provide to the sheriff temporary lodging information including address and length of stay if your absence will be for seven days or more. Since you are a public registry qualified juvenile offender registrant you are also required to register in person with the sheriff of the county in which you establish a place of education immediately upon coming to that county. * * * You are also required to register in person with the sheriff of the county in which you establish a place of employment if you have been employed for more than three days or for an aggregate of 14 days in a calendar year. * * * Employment includes voluntary services. As a public registry qualified juvenile offender registrant, you * * * also shall provide written notice of a change of address or your place of employment or your place of education at least 20 days prior to any change and no later than three days after the change of employment. * * * [Y]ou shall provide written notice within three days of any change in vehicle information, e-mail addresses, internet identifiers or telephone numbers registered to or used by you to
the sheriff with whom you are most recently registered.* * * [Y]ou are required to abide by all of the above described requirements * * * for your lifetime as a Tier III offender with in person verification every 90-days. That means for the rest of your life * * * every three months youre going to be checking in with [the] sheriff where you live or work or both. * * * Failure to register, failure to verify on the specific notice and times as outlined here will result in criminal prosecution.
{¶ 9} C.P. appealed his automatic classification as a Tier III juvenile-offender registrant and PRQJOR to the Fourth District Court of Appeals, arguing that
{¶ 10} The cause is before this court upon the acceptance of a discretionary appeal.
Law and Analysis
S.B. 10 as Punishment
{¶ 11} This court has recently held, in a case involving an adult offender, that the enhanced sex-offender reporting and notification requirements contained in
R.C. 2152.86
{¶ 12} Pursuant to changes brought about by S.B. 10,
{¶ 13} Pursuant to
Ohio‘s SYO Statutory Scheme
{¶ 14} As we explained in State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, the nature of an SYO disposition requires that the juvenile remain under the continuing jurisdiction of a juvenile judge:
A juvenile charged as a potential serious youthful offender does not face bindover to an adult court; the case remains in the juvenile court. Under
R.C. 2152.11(A) , a juvenile defendant who commits certain acts is eligible for “a more restrictive disposition.” That “more restricted disposition” is a “serious youthful offender” disposition and includes what is known as a blended sentence—a traditional juvenile disposition coupled with the imposition of a stayed adult sentence.R.C. 2152.13 . The adult sentence remains stayed unless the juvenile fails to successfully complete his or her traditional juvenile disposition.R.C. 2152.13(D)(2)(a)(iii) . Theoretically, the threat of the imposition of an adult sentence encourages a juveniles cooperation in his own rehabilitation, functioning as both carrot and stick.
{¶ 15} Only further bad acts by the juvenile as he is rehabilitated in the juvenile system can cause the stayed adult penalty to be invoked:
Any adult sentence that the trial court imposes through
R.C. 2152.13(D)(2)(a)(i) is only a potential sentence—it is stayed pursuant toR.C. 2152.13(D)(2)(a)(iii) “pending the successful completion of the traditional juvenile dispositions imposed.”R.C. 2152.13(D)(2)(a)(ii) requires the court to impose a juvenile disposition when it imposes an adult sentence; how the juvenile responds to that disposition will determine whether the stay is lifted on the adult sentence.
{¶ 16}
{¶ 17} A PRQJOR must personally register with the sheriff within three days of coming into a county in which he resides or temporarily is domiciled for more than three days.
{¶ 18} At the time of registration, PRQJORs must provide information such as license-plate numbers of vehicles available to them and e-mail addresses, Internet identifiers, and telephone numbers registered to or used by them.
{¶ 19} PRQJORs must comply with the community-notification requirements of
Differences Between PRQJORs and Other Juvenile-Offender Registrants
{¶ 20} Both the method of assignment and the obligations of PRQJORS assigned to Tier III differ from those juveniles placed in Tier III as juvenile-offender registrants (“JORs“). For juveniles who were adjudicated delinquent through a traditional juvenile disposition and who were age 14 or older at the time of their delinquent act, an assignment to Tier III is not automatic. Instead, if the juvenile court finds that the child is a JOR under
{¶ 21} Though all JORs must register personally with the sheriff within three days of entering into a county where they will reside or be temporarily domiciled,
{¶ 22} Notification requirements also differ significantly. JORs assigned to Tier III are subject to community notification only if the juvenile court orders it,
{¶ 23} The potential for reclassification varies greatly between PRQJORs and JORS. For JORs, the juvenile court must conduct a hearing “upon completion of the disposition of that child” to determine whether the child should be reclassified.
{¶ 24} In sum, for PRQJORs, Tier III classification imposes a lifetime penalty that extends well beyond the age at which the juvenile court loses jurisdiction. It is a consequence that attaches immediately and leaves a juvenile with no means of avoiding the penalty by demonstrating that he will benefit from rehabilitative opportunities.
Cruel and Unusual Punishment
Cruel and Unusual Punishment Under the United States Constitution
{¶ 25} The
{¶ 26} Proportionality review falls within two general classifications: the first involves “challenges to the length of term-of-years sentences given all the circumstances in a particular case.” The second, which until recently was applied only in capital cases, involves “cases in which the Court implements the proportionality standard by certain categorical restrictions.” Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010).
{¶ 27} In this case, we address the second classification of cases. Within that classification, there are two subsets, “one considering the nature of the offense, the other considering the characteristics of the offender.” Id. at 2022. In regard to the nature of the offense, for instance, the court has held that capital punishment is impermissible for nonhomicide crimes against individuals. Kennedy v. Louisiana, 554 U.S. 407, 437, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008). In this juvenile case, we are dealing with the second subset, the characteristics of the offender.
{¶ 28} In recent years, the court has established categorical rules prohibiting certain punishments for juveniles. In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the court prohibited the death penalty for defendants who committed their crimes before the age of 18. In Graham, the court held that the Eighth Amendment prohibits imposition of a life-without-parole sentence on a juvenile offender who did not commit homicide. It is important to note that in both Roper and Graham, the court addressed the cases of juveniles who had been tried as adults. Here, we address the imposition of a sentence upon a child who remains under the jurisdiction of the juvenile court.
{¶ 29} The court engages in a two-step process in adopting categorical rules in regard to punishment: first, the court considers whether there is a national consensus against the sentencing practice at issue, and second, the court determines “in the exercise of its own independent judgment whether the punishment in question violates the Constitution.” Graham, 130 S.Ct. at 2022.
National Consensus
{¶ 30} In 2006, Congress passed the Adam Walsh Child Protection and Safety Act (“Adam Walsh Act“), P.L. No. 109-248, 120 Stat. 587, codified at
{¶ 31} Ohio was the first state to implement SORNA. Id. at ¶ 20. By the start of 2011, only three other states were in substantial compliance with SORNA. http://www.ojp.usdoj.gov/newsroom/pressreleases/2011/SMART11054.htm. Then, on January 11, 2011, the United States attorney general issued Supplemental Guidelines for Sex Offender Registration and Notification, 76 Fed.Reg. 1630 (“Supplemental Guidelines“). These guidelines made significant changes to the National Guidelines for Sex Offender Registration and Notification issued on July 2, 2008. 73 Fed. Reg. 38030. The attorney general promulgated the Supplemental Guidelines in furtherance of his key role in the implementation of SORNA; SORNA “charges the Attorney General with responsibility for issuing guidelines and regulations to interpret and implement SORNA and for determining whether jurisdictions have substantially implemented SORNA in their programs. See
{¶ 32} In releasing the Supplemental Guidelines, the attorney general noted that one of the largest barriers to compliance by states was the fact that “SORNA includes as covered sex offender[s] juveniles at least 14 years old who are adjudicated delinquent for particularly serious sex offenses.” 76 Fed.Reg. at 1636. An April 2009 50-state survey on SORNA conducted by the National Consortium for Justice Information and Statistics stated that “[t]he most commonly cited barrier to SORNA compliance was the acts juvenile registration and reporting requirements, cited by 23 states.” National Consortium for Justice Information and Statistics, Survey on State Compliance with the Sex Offender Registration and Notification Act (SORNA) (2009) 2. In 2008, the Council of State Governments promulgated a resolution against the application of SORNA to juveniles, stating that “[t]he Council of State Governments strongly opposes SORNAs application to juvenile sex offenders and urges Congress to revise the law to more accurately address the needs of juvenile offenders.” http://www.csg.org/knowledgecenter/docs/CSG%20Resolution%20Opposing%20SORNA%20Application%20to%20Juvenile%20Offenders.pdf.
{¶ 33} In January 2011, because of that resistance by the states, the attorney general exercised his authority under
{¶ 35} Thus, in response to the national foot-dragging on SORNA compliance, the attorney general completely lifted the requirement that juveniles be placed on eSORN and that certain entities be notified of their status: “[F]ollowing the issuance of these supplemental guidelines, there is no remaining requirement under SORNA that jurisdictions publicly disclose information about sex offenders whose predicate sex offense convictions are juvenile delinquency adjudications.” 76 Fed.Reg. at 1632.
{¶ 36} Thus, the attorney general acknowledged that to be SORNA compliant in January 2011 required less in the area of publication of a juveniles status than it had previously:
Given this change, the effect of the remaining registration requirements under SORNA for certain juvenile delinquent sex offenders is, in essence, to enable registration authorities to track such offenders following their release and to make information about them available to law enforcement agencies. * * * There is no remaining requirement under SORNA that jurisdictions engage in any form of public disclosure or notification regarding juvenile delinquent sex offenders. Jurisdictions are free to do so, but need not do so to any greater extent than they may wish.
76 Fed.Reg. at 1632.
{¶ 37} This declaration is a major shift in policy, reflective of a national consensus against the very policy that Ohio imposed as part of its attempt to comply with SORNA. In short, outside of three other states, the rest of the nation dealt with an entirely different landscape vis-à-vis SORNA. The goalposts had been moved—after Ohio and other states had already instituted a system that the rest of the nation resisted. The assumption that a national consensus favored publication of juvenile sex offenders personal information had collapsed. Even after the Supplemental Guidelines, as of December 2011, the United States Justice Department has reported that only 15 states are in substantial compliance with SORNA. National Conference of State Legislatures, Adam Walsh Child
Independent Review
{¶ 38} Although national consensus is an important factor in the determination of whether a punishment is cruel or unusual, this court must also conduct an independent review of the sentencing practice in question to determine whether it fits within the constraints of the Eighth Amendment. Graham, 130 S.Ct. at 2026, citing Roper, 543 U.S. at 575. “The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question, * * * [and] whether the challenged sentencing practice serves legitimate penological goals.” Graham at 2026. We thus undertake our own independent review addressing these factors.
Culpability of Offenders
{¶ 39} In regard to the culpability of the offenders, we note that Ohio has developed a system for juveniles that assumes that children are not as culpable for their acts as adults. The courts decision in Graham supports this self-evident principle:
Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U.S., at 569. As compared to adults, juveniles have a ” lack of maturity and an underdeveloped sense of responsibility’ “; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure“; and their characters are “not as well formed.” Id., at 569-570. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson [v. Oklahoma], 487 U.S. 815, 835, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (plurality opinion).
{¶ 40} Not only are juveniles less culpable than adults, their bad acts are less likely to reveal an unredeemable corruptness:
Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults. Roper, 543 U.S., at 570. It remains true that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minors character deficiencies will be reformed.” Id.
{¶ 41} In this case we address a lifetime penalty—albeit open to review after 25 years—making the offenders potential for redemption particularly relevant. Juvenile offenders are more capable of change than adult offenders. And again, we are dealing in this case with juveniles who remain under the jurisdiction of the juvenile court. Based on the review of a juvenile judge, juveniles deemed serious youthful offenders have been determined to be amenable to the rehabilitative aims of the juvenile system. They are in a category of offenders that does not include the worst of those who commit crimes as juveniles.
Nature of the Offenses
{¶ 42} An important consideration in addressing culpability in an independent review of a punishment for Eighth Amendment purposes is the nature of the offenses to which the penalty may apply. In this case,
{¶ 43} Thus, as the court pointed out in Graham, a juvenile who did not kill or intend to kill has “twice diminished moral culpability” on account of his age and the nature of his crime. Id. Thus, when we address the constitutionality of the penalties resulting from an application of
{¶ 44} The next step in the Eighth Amendment analysis is a consideration of the punishment. In this case, as opposed to Roper and Graham, we are not dealing with the harshest and next-harshest possible sentences, death and life without possibility of parole. Indeed, in this case, if C.P.s behavior does not warrant the imposition of the adult portion of his SYO sentence, he will not spend time in an adult prison cell. When his juvenile commitment is complete, he will no longer be confined. However, his punishment will continue. Registration and notification requirements for life, with the possibility of having them lifted only after 25 years, are especially harsh punishments for a juvenile. In Graham, the court wrote that a life sentence for a juvenile is different from such a sentence for an adult; the juvenile will spend a greater percentage of his life in jail than the adult. Graham, 130 S.Ct. at 2028.
{¶ 45} Here, too, the registration and notification requirements are different from such a penalty for adults. For juveniles, the length of the punishment is extraordinary, and it is imposed at an age at which the character of the offender is not yet fixed. Registration and notification necessarily involve stigmatization. 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 juveniles 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. A juvenile—one who remains under the authority of the juvenile court and has thus been adjudged redeemable—who is subject to sex-offender notification will have his entire life evaluated through the prism of his juvenile adjudication. It will be a constant cloud, a once-every-three-month reminder to himself and the world that he cannot escape the mistakes of his youth. A youth released at 18 would have to wait until age 43 at the earliest to gain a fresh start. While not a harsh penalty to a career criminal used to serving time in a penitentiary, a lifetime or even 25-year requirement of community notification means everything to a juvenile. It will define his adult life before it has a chance to truly begin.
Penological Justifications
{¶ 46} Finally, in an Eighth Amendment analysis, we must consider the penological justifications for the sentencing practice. Graham, 130 S.Ct. at 2028. Since we are deciding a case involving a juvenile who has not been bound over to adult court, the goals of juvenile disposition are relevant to our analysis.
(A) The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offenders actions, restore the victim, and rehabilitate the offender. These purposes shall be achieved by a system of graduated sanctions and services.
{¶ 47} Lifetime registration and notification requirements run contrary to
{¶ 48} As for protecting the public interest and safety, some might argue that the registration and notification requirements further those aims. However, it is difficult to say how much the public interest and safety are served in individual cases, because the PRQJOR statutory scheme gives the juvenile judge no role in determining how dangerous a child offender might be or what level of registration or notification would be adequate to preserve the safety of the public.
{¶ 49} The PRQJOR penalties do meet the statutory objective of accountability. However, a major issue in this case is whether the depth and duration of the accountability that
{¶ 50} In addition to the penological considerations laid out by Ohios legislature, Graham set forth “the goals of penal sanctions that have been recognized as legitimate—retribution, deterrence, incapacitation, and rehabilitation” and considered whether any of those goals justified a sentence of life without parole for juveniles committing nonhomicide crimes. Id., 130 S.Ct. at 2028.
{¶ 51} The court held that retribution could not support the sentence in that case, because ” [t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender, Tison [v. Arizona], 481 U.S. 137, 149, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987),” and because “[w]hether viewed as an attempt to express the communitys moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. [Roper], 543 U.S., at 571.” Graham at 2028. As the court
{¶ 52} The court in Graham also discounted the penological goal of deterrence for the same reason we do in this case:
Because juveniles “lack of maturity and underdeveloped sense of responsibility * * * often result in impetuous and ill-considered actions and decisions,” Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), they are less likely to take a possible punishment into consideration when making decisions.
Graham, 130 S.Ct. at 2028-2029. Further, in this case, the significance of the particular punishment and its effects are less likely to be understood by the juvenile than the threat of time in a jail cell. Juveniles are less likely to appreciate the concept of loss of future reputation.
{¶ 53} Incapacitation as a penological goal is not relevant in this case. The focus here is what happens to a juvenile once he emerges from confinement.
{¶ 54} Finally, as to the final penological goal—rehabilitation—we have already discussed the effect of forcing a juvenile to wear a statutorily imposed scarlet letter as he embarks on his adult life. “Community notification may particularly hamper the rehabilitation of juvenile offenders because the public stigma and rejection they suffer will prevent them from developing normal social and interpersonal skills—the lack of those traits [has] been found to contribute to future sexual offenses.” Michele L. Earl-Hubbard, The Child Sex Offender Registration Laws: The Punishment, Liberty Deprivation, and Unintended Results Associated with the Scarlet Letter Laws of the 1990s, 90 Nw.U.L.Rev. 788, 855-856 (1996).
{¶ 55} In addition to increasing the likelihood of reoffense, publication of a juveniles offense makes reintegration into society more difficult, due in part to the personal economic impact:
Sex offender registration constitutes an additional form of punishment for juvenile sex offenders, perhaps more substantial than that experienced by adult sex offenders. Many juvenile sex offenders are released back into society after completion of their court-imposed disposition at an age when they would ordinarily first be entering the workforce and find themselves unable to obtain employment due to their publicized “sex offender” label. Any job in education, health care, or the military is virtually impossible to get.
{¶ 56} The social response to publication of a juveniles sexual offenses also affects rehabilitation:
When a sex offender registration and notification law requires door-to-door neighborhood notification, public announcements, or listing on a sex offender website, the likelihood that a juvenile offenders peers and community will discover the offense is very high. Public disclosure may inspire “vigilantism, public shame, social ostracism, and various types of adverse legal action, including loss of employment and eviction.”
Id. at 47, quoting Stacey Hiller, The Problem with Juvenile Sex Offender Registration: The Detrimental Effects of Public Disclosure, 7 B.U.Pub.Int.L.J. 271, 287 (1998).
{¶ 57} We conclude that the social and economic effects of automatic, lifetime registration and notification, coupled with an increased chance of reoffense, do violence to the rehabilitative goals of the juvenile court process. As the court decided in Graham in regard to a life sentence without parole for juvenile offenders, we find that penological theory “is not adequate to justify” the imposition of the lifetime registration and notification requirements of
Graham Factors
{¶ 58} In sum, the limited culpability of juvenile nonhomicide offenders who remain within the jurisdiction of the juvenile court, the severity of lifetime registration and notification requirements of PRQJOR status, and the inadequacy of penological theory to justify the punishment all lead to the conclusion that the lifetime registration and notification requirements in
{¶ 59} The
The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.
Arnold v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the syllabus. Thus, the
{¶ 60} In its own jurisprudence regarding Article I, Section 9, this court has recognized that cases involving cruel and unusual punishments are rare, “limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person.” McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). Lack of proportionality is a key factor: “A punishment does not violate the constitutional prohibition against cruel and unusual punishments, if it be not so greatly disproportionate to the offense as to shock the sense of justice of the community.” State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972), paragraph three of the syllabus.
{¶ 61} For juveniles who remain in the juvenile system,
{¶ 63} Ohios juvenile system is designed to shield children from stigmatization based upon the bad acts of their youth:
For delinquent children, “it is the laws policy to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.” In re Gault (1967), 387 U.S. 1, 24, 87 S.Ct. 1428, 1442, 18 L.Ed.2d 527, 544. In Ohio, we are required to liberally interpret the juvenile delinquency provisions to “protect the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care, and rehabilitation.” See
R.C. 2151.01(B) .
{¶ 64} “[T]raditionally juveniles have been shielded from the stigma of the proceedings by keeping hearings private and not publishing juveniles names. See Champion & Mays, Transferring Juveniles to Criminal Courts: Trends and Implications for Criminal Justice (1991) 38.” State v. Hanning, 89 Ohio St.3d 86, 89, 728 N.E.2d 1059 (2000).
{¶ 65} In this case, for instance, we refer to the juvenile by his initials, rather than by his full name. But if
{¶ 66} The Ohio Juvenile Rules also are designed to keep juvenile dispositions private.
{¶ 68} The publication required by S.B. 10 causes the greatest possible stigmatization:
Operating directly contrary to the rehabilitative goals of the juvenile justice system, sex offender registration and notification laws can publicly and permanently mark juvenile sex offenders as deviant criminals who should be feared and shunned. While many juvenile proceedings are confidential and sealed, sex offender registration and notification laws, by creating a public record, place the sexual offense of a juvenile directly and prominently in the public eye.
[F]ew labels are as damaging in todays society as “convicted sex offender.” Sex offenders are, as one scholar put it, “the lepers of the criminal justice system,” with juveniles listed in the sex offender registry sharing this characterization. The states interest in and responsibility for a juveniles well-being and rehabilitation is not promoted by a practice that makes a juveniles sex offenses public.
(Footnotes omitted.) Geer, Justice Served?, 27 Developments in Mental Health Law at 47, quoting Robert E. Shepherd, Advocating for the Juvenile Sex Offender, Part 2 (2007), 21 Crim. Just. 52, 53.
{¶ 69} S.B. 10 forces registration and notification requirements into a juvenile system where rehabilitation is paramount, confidentiality is elemental, and individualized treatment from judges is essential. The public punishments required by
Due Process
{¶ 70} Appellant also argues that
{¶ 71} “Constitutional procedural safeguards in the juvenile context find their genesis in the Due Process Clause of the Fourteenth Amendment to the United
{¶ 72} From a due process perspective, both this court and the United States Supreme Court have held that juveniles may be treated differently from adults.
[O]ur acceptance of juvenile courts distinct from the adult criminal justice system assumes that juvenile offenders constitutionally may be treated differently from adults. * * * Viewed together, our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for childrens vulnerability and their needs for “concern, * * *, sympathy, and * * * paternal attention.” [McKeiver v. Pennsylvania, 403 U.S. 528, 550, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971)] (plurality opinion).
Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). The United States Supreme Court has stated that “the applicable due process standard in juvenile proceedings * * * is fundamental fairness.” McKeiver at 543.
{¶ 73} In D.H., this court applied a fundamental-fairness standard in addressing due process concerns, holding that a balanced approach is required to preserve the special nature of the juvenile process. We recognized the states stake in the rehabilitation of juvenile offenders and the states paternal role:
The State has “a parens patriae interest in preserving and promoting the welfare of the child,” Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 1401, 71 L.Ed.2d 599 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the “informality” and “flexibility” that characterize juvenile proceedings, In re Winship [397 U.S. 358, 366, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)], and yet to ensure that such proceedings comport with the “fundamental fairness” demanded by the Due Process Clause. Breed v. Jones [421 U.S. 519, 531, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975)]; McKeiver, supra, 403 U.S., at 543, [29 L.Ed.2d 647] (plurality opinion).
D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 50, quoting Schall v. Martin, 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984).
{¶ 74} In D.H., we addressed whether fundamental fairness requires a jury to participate in the imposition of the adult portion of a sentence in an SYO case tried to a jury. The court had previously held in a case involving sentences for adult offenders, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, that statutes violate the
{¶ 75} In D.H., we held that fundamental fairness does not demand the same
The court‘s dispositional role is at the heart of the remaining differences between juvenile and adult courts. It is there that the expertise of a juvenile judge is necessary. The judge, given the factors set forth in
R.C. 2152.13(D)(2)(a)(i) , must assess the strengths and weaknesses of the juvenile system vis-à-vis a particular child to determine how this particular juvenile fits within the system and whether the system is equipped to deal with the child successfully. That assessment requires as much familiarity with the juvenile justice system as it does familiarity with the facts of the case. To leave that determination to an expert, given the juvenile system‘s goal of rehabilitation, does not offend fundamental fairness, especially since the adult portion of the blended sentence that the judge imposes upon a jury verdict is not immediately, and may never be, enforced.
Id., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 59.
{¶ 76} Thus, this court held that the discretionary role of the judge in the disposition of a juvenile case overrides the importance of the role of the jury. The disposition of a child is so different from the sentencing of an adult that fundamental fairness to the child demands the unique expertise of a juvenile judge. Id.
{¶ 77}
[t]he legislative purpose regarding [juveniles] has been laid out in
R.C. 2151.01 : to provide for the care, protection, and mental and physical development of children, to protect the public from the wrongful acts committed by juvenile delinquents, and to rehabilitate errant children and bring them back to productive citizenship, or, as the statute states, to supervise, care for and rehabilitate those children. Punishment is not the goal of the juvenile system, except as necessary to direct the child toward the goal of rehabilitation.
{¶ 78}
{¶ 79}
{¶ 80} Once the request is filed, the adult portion of the sentence cannot be invoked without a public hearing.
{¶ 81} Further, pursuant to
{¶ 82} Thus, for the bulk of Ohio‘s SYO scheme, the juvenile court retains discretion to deal individually with juvenile offenders, and procedural protections are in place before adult punishment can be invoked. Even after additional bad acts by a juvenile, the judge has the discretion not to invoke the adult sentence, or to lessen the one imposed at the time of the juvenile disposition. On the other hand, even for a juvenile who is amenable to rehabilitation and commits no further bad acts during his juvenile disposition, the adult consequences of registration and notification attach immediately. PRQJORs have no right to present evidence or even be heard on the issue of their classification.
{¶ 83} Once the juvenile court makes its SYO determination, the juvenile judge never gets an opportunity to determine whether the juvenile offender has responded to rehabilitation or whether he remains a threat to society. Even if the adult portion of his sentence is not invoked, the sex-offender classification is irrevocable. The timing of the classification—immediately upon the imposition of SYO status—leaves no room for the judge to determine whether the juvenile offender has been rehabilitated. And the automatically imposed punishment lasts far longer than the jurisdiction of the juvenile court.
{¶ 84} Again, we are dealing with juveniles who remain in the juvenile system through the decision of a juvenile judge—a decision made through the balancing of the factors set forth in
{¶ 85} The requirement in
Conclusion
{¶ 86}
{¶ 87} Accordingly, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings in accordance with this opinion.
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, and MCGEE BROWN, JJ., concur.
O‘DONNELL and CUPP, JJ., dissent.
O‘DONNELL, J., dissenting.
{¶ 88} Respectfully, I dissent.
{¶ 89} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, I expressed my view in a dissenting opinion, that consistent with prior holdings of this court, the registration and notification requirements of S.B. 10
Factual and Procedural Background
{¶ 90} In 2005, the state of Utah filed a petition charging C.P., then age 11, with destruction of property, sodomy, aggravated sexual abuse of a child, and rape of a child. The three latter charges stemmed from allegations that when C.P. was nine and ten years old, he had engaged in sexual conduct with his half-sister—three years younger—for several years. That conduct included making his sister perform strip acts, forcing her to perform and receive oral sex, exposing himself, and forcibly raping her. C.P. admitted to the charges of destruction of property, sodomy, and sexual abuse of a child, a charge which the state had reduced from aggravated sexual abuse of a child. The Utah juvenile court placed C.P. in the temporary custody of the Division of Child and Family Services for foster care, committed him to the Department of Juvenile Justice Services for 30 days, and ordered him to obtain sex-specific counseling. During a neuropsychological evaluation conducted in 2006, C.P. admitted the allegations involving his half-sister and also admitted to having “touched five or six other young girls inappropriately.”
{¶ 91} While in foster care in Utah, C.P. left his second foster home after being accused of touching a girl‘s breast at school. He was then placed in the Youth Track residential program for juvenile sex offenders, where he received inpatient residential care from June 1, 2006, through November 3, 2008, when he returned home to live with his mother. C.P. participated in outpatient counseling, but discontinued taking his medications because he did not like how they made him feel.
{¶ 92} Thereafter, C.P.‘s parents agreed that he might benefit from living with his father in Ohio, and in June 2009, he moved to Ohio. Within nine days of his arrival, C.P., then age 15, secluded himself with his six-year-old nephew and orally and anally raped him.
{¶ 93} The day after the incident, the state filed a complaint against C.P. in the Athens County Juvenile Court, charging him with two counts of child rape and one count of kidnapping with sexual motivation, each count a first-degree felony if committed by an adult. The state filed a motion pursuant to
{¶ 95} C.P. appealed his classification as a Tier III offender and PRQJOR to the Fourth District Court of Appeals, arguing that
The Majority Opinion
{¶ 96} The majority reverses the judgment of the court of appeals, finding that the registration and notification requirements of
{¶ 97} The Ohio General Assembly passed 2007 Am.Sub.S.B. No. 10 (“S.B. 10“) in accordance with legislation enacted by the United States Congress in an effort to create a national, uniform system of sex-offender registration. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 25. Amended by S.B. 10,
{¶ 98} Accordingly, in my view, the General Assembly constitutionally enacted
R.C. 2152.86 is not Punitive
{¶ 99} In State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, ¶ 20, 73, this court reiterated that the constitutionality of a statute starts with a presumption of constitutionality based in part upon this court‘s deference to the legislative branch on matters of public policy. The strong presumption of constitutionality is further supported by the requirement that before we can declare a statute unconstitutional, it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible. State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 7. With respect to determining whether a registration statute is punitive, “‘only the clearest proof could suffice‘” to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. United States v. Ward, 448 U.S. 242, 249, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
{¶ 100} The majority opinion begins with the premise that
{¶ 101} The majority bases its conclusion on several factors: the lack of a national consensus favoring the publication of juvenile sex offenders’ personal information, its belief that juvenile sex offenders are less culpable and more capable of change than adult sex offenders, and its position that the requirements of the statute are especially harsh because a juvenile offender will begin adulthood with the stigma associated with being labeled a sex offender, which in turn will hamper education, relationships, and employment opportunities. The majority further finds that
{¶ 102} Registration has historically been viewed as a regulatory measure and not as a form of punishment. See, e.g., R.W. v. Sanders, 168 S.W.3d 65, 69 (Mo.2005), citing Lambert v. California, 355 U.S. 225, 229, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957); In re Richard A., 946 A.2d 204, 213 (R.I.2008) (sex-offender registration requirement for juveniles did not constitute punishment and was found constitutional). In Smith v. Doe, the court rejected analogies between sex-offender registration and “shaming punishments of the colonial period.” 538 U.S. 84, 97, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). “Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment.” Id. at 98.
{¶ 103} As applied to juveniles, courts have rejected the argument that statutes subjecting juveniles to public registration are punitive because of the unpleasant consequences that may flow from registration or the length of time a juvenile may be required to report. In United States v. Juvenile Male, the Ninth Circuit Court of Appeals recently rejected the conclusion reached here by the majority, determining that the registration and notification requirements imposed by the federal Sex Offender Registration and Notification Act (“SORNA“) on juveniles do not constitute cruel and unusual punishment. 670 F.3d 999, 1010-1011 (2012). After noting that “[t]he bar for cruel and unusual punishment is high,” the court went on to explain:
Although defendants understandably note that SORNA may have the effect of exposing juvenile defendants and their families to potential shame and humiliation for acts committed while still an adolescent, the statute does not meet the high standard of cruel and unusual punishment. The requirement that juveniles register in a sex offender database for at least 25 years because they committed the equivalent of aggravated sexual abuse is not a disproportionate punishment. These juveniles do not face any risk of incarceration or threat of physical harm. In fact, at least two other circuits have held that SORNA‘s registration requirement is not even a punitive measure, let alone cruel and unusual punishment. See United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (“SORNA‘S registration requirement demonstrates no congressional intent to punish sex offenders“); see also United States v. Young, 585 F.3d 199, 204-05 (5th Cir.2009).
{¶ 104} In the case of In re Ronnie A., 355 S.C. 407, 409, 585 S.E.2d 311 (2003), the Supreme Court of South Carolina reiterated its prior holding that “sex offender registration, regardless of the length of time, is non-punitive” and saw no reason to distinguish juvenile sex offenders. Although the juvenile at issue did not have to be placed on the public registry because he was under 12 years of age at the time of his adjudication, the statute being challenged,
{¶ 105} Additionally, although the Supreme Court of South Dakota struck down that state‘s public-registration statute on equal protection grounds, it reiterated its position that public registration is not punitive. See In re Z.B., 2008 S.D. 108, 757 N.W.2d 595, ¶ 24. “Such measures are not penal; they are regulatory.” Id. South Dakota amended its sex-offender registration statute in 2010, and the current version still requires juveniles over the age of 14 to publicly register as sex offenders for certain offenses.
{¶ 106} Although the majority finds juvenile sex offenders less culpable than their adult counterparts, juveniles commit more than 25 percent of all sex offenses and more than 35 percent of all sex offenses against children. Finkelhor, Ormrod & Chaffin, Juveniles Who Commit Sex Offenses Against Minors, Office of Juvenile Justice and Delinquency Preventions, Juvenile Justice Bulletin 3 (Dec. 2009). In fact, C.P. was a repeat offender, and all of his victims were other juveniles; by invalidating
{¶ 107} Moreover, this court has previously recognized that an offense committed as a juvenile may have adverse consequences on the offender as an adult. In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, we held that a juvenile adjudication could serve as one of the five prior similar offenses necessary to enhance a charge of operating a motor vehicle while under the influence of alcohol because
{¶ 109} Nor is
{¶ 110}
{¶ 111} For the foregoing reasons, the requirements of
R.C. 2152.86 Meets the Requirements of Due Process and Fundamental Fairness
{¶ 112} Courts have rejected challenges to registration statutes based on alleged violations of due process. In Connecticut Dept. of Pub. Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), the Supreme Court construed Connecticut‘s version of Megan‘s Law and held that procedural due process did not entitle a convicted sex offender to a hearing on current dangerousness before
{¶ 113} Rejecting a similar argument, the Ninth Circuit in United States v. Juvenile Male, explained:
Additional process is only necessary where it gives a sex offender the ability to prove or disprove facts related to the applicability of the registration requirement. In other words, where “the law‘s requirements turn on an offender‘s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest“—no additional process is required for due process. Doe v. Tandeske, 361 F.3d 594, 596 (9th Cir.2004). In this case, juvenile sex offenders are required to register on the basis of their adjudicated juvenile status, which explicitly triggers SORNA‘s requirements under
42 U.S.C. § 16913 . Thus, because defendants are not challenging whether they received adequate due process in their juvenile proceedings, there is no basis for a procedural due process claim.Further, adequate procedural safeguards at the conviction stage are sufficient to obviate the need for any additional process at the registration stage.
Juvenile Male, 670 F.3d at 1014.
{¶ 114} As applied here, C.P. cannot establish a due process violation based on the fact that
{¶ 115} Discretion is a matter of grace and not of right. Thus, the General Assembly was within its authority to impose automatic registration on juvenile sex offenders when it enacted
Conclusion
{¶ 116}
{¶ 117} The General Assembly enacted
{¶ 118} For these reasons, I would affirm the judgment of the court of appeals and hold that
CUPP, J., dissenting.
{¶ 119} For a violation of the
{¶ 120} This court has similarly recognized the high bar a challenger asserting cruel and unusual punishment must overcome. In State v. Chaffin, 30 Ohio St.2d 13, 17-18, 282 N.E.2d 46 (1972), this court upheld the imposition of a 20- to 40-year prison sentence for a defendant convicted of selling cannabis, rejecting the defendant‘s contention that his punishment was cruel and unusual. Paragraph three of the Chaffin syllabus held that a punishment is not cruel and unusual
{¶ 121} When reviewing a particular juvenile punishment for an
{¶ 122} I dissented in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, because I could not find, as the majority did, that certain portions of 2007 Am.Sub.S.B. No. 10 (“S.B. 10“) are punitive in nature for purposes of a retroactivity analysis pursuant to the
{¶ 123} But the sex-offender registration and notification provisions at issue in this case are so significantly different from the punishment at issue in Graham—lifetime imprisonment with no chance of parole, with its fundamental loss of liberty—that I am left wondering how the two can possibly be considered comparable for constitutional purposes.
{¶ 124} Although the provisions of
{¶ 126} Under
{¶ 127} Justice O‘Donnell‘s dissenting opinion makes clear that C.P.‘s offenses, if committed by an adult, would have potentially resulted in convictions for three first-degree felonies and a very long prison sentence, thus highlighting the seriousness of C.P.‘s conduct that the majority opinion merely mentions in passing. C.P.‘s status as a PRQJOR is a direct consequence of his own actions.
{¶ 128} The Graham court majority‘s decision to adopt a categorical rule as to the particular issue raised in that case was driven by two critical considerations. First, juvenile offenders who did not kill or intend to kill have a “twice diminished moral culpability,” Graham, 560 U.S. 48, 130 S.Ct. at 2027, 176 L.Ed.2d 825, because (1) they are juveniles, who in general lack maturity, are vulnerable to negative influences, and are more capable of change than adults, id. at 2026, and (2) their offenses are not deserving of the most serious forms of punishment, which should be reserved for adults who commit murder. Id. at 2026-2027. Second, sentences of life in prison without parole “share some characteristics with death sentences that are shared by no other sentences,” including irrevocability, and therefore must be regarded as “especially harsh punishment for a juvenile.” Id. at 2027 and 2028. The court in Graham thus concluded that the high bar that must be overcome for a punishment to be deemed cruel and unusual was met largely because of the exceptionally harsh punishment a sentence of life imprisonment without parole entails.
{¶ 129} In the present case, however, the majority unjustifiably relies on the offender‘s juvenile status to minimize the substantial bar the challenger must surmount to establish cruel and unusual punishment. In place of that substantial
{¶ 130} The majority opinion, unfortunately, fails to acknowledge this fundamental difference, even as it repeatedly compares the requirements in this case to the punishment of lifetime imprisonment in Graham. Instead, it appears to stage-manage the Graham factors in order to reach its own preferred policy result.
{¶ 131} In so doing, the majority opinion completely loses sight of the overriding meaning of the standards applicable in cases of this nature. Although the registration and public-disclosure provisions at issue in this case are criticized by some as imprudent and too harsh, a demonstration of simple disproportionality is not enough to support a finding of an
{¶ 132} Additionally, I am unable to agree with the majority‘s determination that
{¶ 133} Finally, the majority‘s analysis leaves unanswered a multitude of additional issues that its conclusions generate. As a result, the trial court will be forced to guess what is actually required in this case upon remand. I note just two of these unanswered questions.
{¶ 135} Second, another constitutional infirmity of the statute, according to the majority opinion, is that the registration and notification requirements are lifelong (with a possibility for adjustment after 25 years). May a juvenile judge in the exercise of discretion now impose requirements of shorter duration on offenders such as C.P. and overcome the constitutional deficiencies? If so, what duration will satisfy the majority‘s concerns?
{¶ 136} It is not just the juvenile judge in this particular case who must decipher the meaning of this court‘s analysis. This decision will also affect other juvenile offenders and the juvenile judges who will preside over their cases. This court apparently leaves it to those judges to unravel the mysteries of this decision‘s application. Moreover, should the General Assembly seek to revise the statute to conform with this court‘s decision, it will have a difficult time discerning the new
{¶ 137} I am unable to agree that the provisions of
C. David Warren, Athens County Prosecuting Attorney, and George Reitmeier, Assistant Prosecuting Attorney, for appellee, state of Ohio.
Timothy Young, State Public Defender, and Brooke M. Burns, Assistant Public Defender, for appellant, C.P.
Nadia Seeratan, urging reversal for amici curiae National Juvenile Defender Center, Association for the Treatment of Sexual Abusers, Central Juvenile Defender Center, Juvenile Justice Coalition, Ohio Justice and Policy Center, Dr. Elizabeth J. Letourneau, and Dr. Morris Jenkins.
Gamso, Helmick & Hoolahan and Jeffrey M. Gamso; and James L. Hardiman and Carrie L. Davis, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.
Michael DeWine, Attorney General, Benjamin C. Mizer, Solicitor General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Laura Eddleman Heim, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.