In the Matter of J. J. L., a Youth. STATE OF OREGON, Respondent, v. J. J. L., Appellant.
Douglas County Circuit Court 15JU00769; A176313
Court of Appeals of Oregon
Submitted September 28, affirmed December 7, 2022
323 Or App 136 (2022)
Frances Elaine Burge, Judge.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Ginger Fitch and Youth, Rights & Justice filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kirsten M. Naito, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
PER CURIAM
Affirmed. State v. A. L. M., 305 Or App 389, 399, 469 P3d 244 (2020), rev den, 367 Or 218 (2020).
Egan, J., concurring.
In 2015, when J was a 13-year-old child, he admitted that he had committed acts that, if he were an adult, would constitute second-degree rape under
Over the six years following J‘s admission, J engaged in sex-offender treatment, took responsibility for his conduct, matured, improved his self-control, and, most importantly, did not reoffend.
In 2020 and 2021, the juvenile court held hearings pursuant to
Perhaps unsurprisingly, given that standard of proof, the juvenile court held that J—who was then two months shy of his 20th birthday—had not met his burden and ordered J to register as a sex offender pursuant to
I must concur with the majority‘s disposition in this case, because the juvenile court judge correctly interpreted the burden of proof imposed by
Rather than outlining the details of J‘s progress, the faith in his recovery and rehabilitation attested to by his treatment providers, or his turbulent childhood, this concurrence will simply explain the problem with the “clear and convincing” standard of proof (as coupled with the standard of review that that standard of proof requires on appellate review). I do so because the result in this case is not dictated by J‘s conduct after being adjudicated to be within the jurisdiction of the juvenile court or our interpretation of
I. THE MYTH
To understand the problem with application of the “clear and convincing” standard as applied to those who offended as juveniles, it is important to understand that our scheme for juvenile sex offender registration is based on a myth—viz., that recidivism rates among sexual offenders are “frightening and high.” See McKune v. Lile, 536 US 24, 33-34, 122 S Ct 2017, 153 L Ed 2d 47 (2002) (characterizing recidivism rates among sexual offenders as “frightening and high“). Decades of research have shown that, particularly with regard to juvenile offenders, recidivism rates are anything but high. See, e.g., Michel F. Caldwell, Quantifying
But the myth that, writ large, recidivism among those convicted of sex crimes is “frightening and high” has taken hold in our legal system. As highlighted by New York Times reporting, the United States Supreme Court continues to endorse that myth in its decision-making. See Adam Liptak, Did the Supreme Court Base a Ruling on a Myth, NY Times (Mar 6, 2017), https://www.nytimes.com/2017/03/06/us/politics/supreme-court-repeat-sex-offenders.html (accessed Oct 31, 2022). Equally troubling, over 100 lower court decisions have relied on the language regarding recidivism rates being “frightening and high” in McKune, and a subsequent Supreme Court case citing McKune, Smith v. Doe, 538 US 84, 103, 123 S Ct 1140, 155 L Ed 2d 164 (2003), many to justify the banishment of registered sex
Of course, the myth is not just taken as fact by many courts. Popular media is awash with stories regarding sex offenders that, understandably, stir an emotional response in the public, but do not portray accurate information regarding recidivism rates for sex offenders. In September 2013, for example, The Oregonian published an inflammatory editorial indicating that registration of sex offenders in Oregon should be a “top Oregon priority” because, until it is, “it is not unreasonable to expect sex offenders from elsewhere [to move] to Oregon,” with the “under-the-radar” offenders being “scariest of all,” and further explaining that “[n]obody wants a dangerous creep living down the hall or across the street.” Editorial Board, Accounting for sex offenders should be a top Oregon priority, The Oregonian (Oct 8, 2013), https://www.oregonlive.com/opinion/2013/10/accounting_for_sex_offenders_s.html (accessed Oct 31, 2022).1 In 2017, broadcast media in Portland led with a story that “[t]housands of sex offenders” were “out of compliance” and that “Oregon now has the most sex offenders per capita in the U. S. according to the National Center for Missing and Exploited Children.” Thousands of sex offenders out of compliance, kept off public database in Oregon, KATU 2 News Broadcast (Aug 1, 2016), https://katu.com/archive/thousands-of-sex-offenders-out-of-compliance-kept-off-public-database-in-oregon (accessed Oct 31, 2022). Such eye-catching news stories, and the narrations of particularly heinous sexual offenses that often accompany them, frequently do not take into account the wide variety of offenses that qualify for registration from state to state; they do not take into
Nationally, our laws regarding sex offenders developed as a result of such lore thereby cloaking the myth in the legitimacy of both our legal system and our policy-making bodies: In the early 1990s, legislators around the country rushed to address the burgeoning phenomenon of widely reported sex crimes with the passage of laws named after specific children and based on anecdotal evidence. The United States Congress and state legislative assemblies passed laws named after victims of the worst, most highly publicized, and comparatively rare type of crimes against children, like “Megan‘s Law,” the “Adam Walsh Child Protection and Safety Act,” and the “Jacob Wetterling Crimes Against Children and Sexual Violent Offender Registration Act,” the latter of which mandated that states maintain sex offender registries.
That is the backdrop against which Oregon‘s sexual offender reporting statutes (SORS) developed, though Oregon‘s SORS did not start that way.
II. OREGON‘S SORS
Oregon‘s original SORS, enacted in 1989, were designed to track statistics on recidivism and aid law enforcement officials in tracking known sexual offenders. They were not intended to be punitive, and compliance was relatively straightforward: They applied to a limited number of particularly heinous, serious sex crimes—viz., rape, sodomy, sexual penetration with a foreign object, sexual abuse, or any attempt to commit any of those crimes; registration
At that time, the frequency and length of registration required by Oregon‘s SORS followed the data found in contemporaneous literature, which reflected relatively low recidivism.
Over the ensuing decades, however, following the national trend, Oregon‘s SORS shifted from their roots as statutes designed to track statistics on recidivism and aid law enforcement officials in tracking known sexual offenders, and became a punitive measure for offenders, both adult and juvenile.
More specifically, over the ensuing decades, Oregon‘s SORS adopted the inclusion of juveniles in the definition of “predatory sex offenders“;3 the length of time offenders, including juvenile offenders, were required to register under the SORS changed from a maximum of five years to a lifetime with the right to petition for relief after 10 years for sex offenses committed as a minor;4 all failures to register became punishable as misdemeanors and felonies;5 the time periods for registration shrunk from 30 days to 10 days;6 and the list of crimes requiring registration expanded to include over 20 crimes (or attempt to commit those crimes), including “sexual abuse of an animal.”7 Finally, Oregon‘s SORS changed to comply with all-encompassing federal legislation.8
As the number of registration events under Oregon‘s SORS increased, the chances of successful compliance with Oregon‘s SORS decreased, and the risk of failure to register (and suffering concomitant criminal penalties) increased. Further, registration is now supervised by the Department of State Police.10
In 2015, the legislature renumbered Oregon‘s SORS and moved them from ORS chapter 181 to the criminal statutes in ORS chapter 163A. Twenty-five years after its inception, lawmakers finally and officially designated Oregon‘s SORS as a punitive law.
The operation of ORS chapter ORS 163A clearly illustrates the punitive nature of Oregon‘s SORS. Under that chapter, all children adjudicated as juveniles or prosecuted as adults under
III. THE PROBLEM WITH THE PUNITIVE APPROACH
The problem with the punitive approach taken by Oregon‘s SORS, at least with regard to juveniles, is both that it does not make our communities safer and does harm to adjudicated youth.
A. Community Safety
With regard to community safety, Professor Elizabeth J. Letourneau—now director of the Moore Center for the Prevention of Child Sexual Abuse at Johns Hopkins University—succinctly stated before Oregon‘s House and Senate Judiciary Committees on September 18, 2013, that, “Registration of juveniles fails, in any way, to improve public safety.” See Meeting Materials, House and Senate Interim Committees on Judiciary, Sept 18, 2013 (Affidavit of Elizabeth J. Letourneau, Ph.D., Associate Professor, Department of Mental Health Director, Moore Center for the Prevention of Child Sexual Abuse at Johns Hopkins University).
That broad and sweeping statement is supported by the vast majority of available peer-reviewed research. Id. (noting “strong and empirically rigorous evidence” supports that statement). Indeed, Professor Letourneau and her colleagues—after completing six thorough statistical surveys in as many states—found no deterrent effect based on juvenile SORS. Further, in one study involving South Carolina‘s
“In particular, results indicated a significant decline in the likelihood of prosecutors moving forward on juvenile sex crime cases after the implementation of [SORS]. When cases did move forward, there was a significant increase in the odds of pleading from a sex to a non-sex crime; thus, community safety could in fact be compromised as a result of reduced likelihood of prosecution for juvenile sex crimes.”
See Meeting Materials, House and Senate Interim Committees on Judiciary, Sept 18, 2013 (Elizabeth J. Letourneau, Does Sex Offender Registration and Notification Work with Juveniles?, 4 (2009)). The results of that study led Professor Letourneau and her colleagues to hypothesize that prosecutors were “reluctant to subject some juveniles who sexually offended to South Carolina‘s lifetime registration and public notification requirements and, instead, selectively forwarded more serious cases after the implementation of [SORS].” Id. at 3.
In my view, the phenomenon of pleading to non-sex crimes is just as easily explained by the prosecutorial construct of “over-charging” a defendant with an offense with a long mandatory sentence and then pleading down to a harsh but more flexible sentence. This construct has a name: “Leveraging.”11 The most common form of leveraging in Oregon occurs when prosecutors use “leverage” to negotiate from a determinate Measure 11 sentence to an indeterminate sentence of like length. A study of this construct in Oregon showed that prosecutors use “leveraging” in 70 percent of serious criminal cases. Criminal Justice Commission, State of Oregon, Longitudinal Study of the Application of Measure 11 and Mandatory Minimums in Oregon, ix (Mar 2011). Perhaps as a result of leveraging, in Oregon, the number of convictions for sexual offenses subject to Measure 11 has declined in the last 15 years, but the
Whether the unintended consequences of SORS are the failure to prosecute sexual offenders or overcharging and leveraging a potential lifetime of registration requirements, both consequences illustrate the failure of the law to meet its nascent goals of preventing future sex offenses and controlling recidivism. In that regard, I note that a 2009 study found that approximately 95 percent of sexual offenders arrested for sexual offenses had no prior convictions for sexual offenses and, therefore, the vast majority of offenders did not appear on the SORS lists prior to their offense. Jeffrey C. Sandler, Naomi J. Freeman & Kelly M. Socia, Does A Watched Pot Boil? A Time-Series Analysis of New York State‘s Sex Offender Registration and Notification Law, 14 Psychol, Pub Pol‘y & Law 284 (2008). Those findings cast serious doubt on the efficacy of SORS in targeting repeat offenders or meaningfully reducing sexual violence. Id.
B. Harm to Adjudicated Youth
In addition to failing to make our communities safer, juvenile SORS do real harm to adjudicated youth. As Professor Letourneau explained to the Oregon Legislature:
“The process of identifying oneself as a registered sex offender multiple times per year, and of being arrested and possibly charged for new offenses due in part to this label seems likely to cause registered youth to view themselves as ‘delinquent’ even when they are law-abiding. Ample evidence indicates that youth who view themselves as delinquent or outside the mainstream are less likely to change patterns of offending. Policies that promote youths’ concepts of themselves as lifetime sex offenders will likely interrupt the development of a positive self-identity.”
Meeting Materials, House and Senate Interim Committees on Judiciary, Sept 18, 2013 (Affidavit of Elizabeth J. Letourneau, Ph.D., Associate Professor, Department of Mental Health Director, Moore Center for the Prevention of Child Sexual Abuse at Johns Hopkins University).
Professor Letourneau‘s observation is supported by an overwhelming amount of research: Studies have repeatedly
Author Nell Bernstein summarized the last few decades of decline in the administration of juvenile justice and the aftermath:
“The mass criminalization of teenagers, taking place of decades of demographic transformation that have given us the most diverse generation this country has known, has cleared the way for the legal and literal segregation of a group of young people—the overwhelmingly poor black and brown children with whom we fill our juvenile prisons—who are indelibly marked as ‘other’ by the experience: their names exchanged for prison ID numbers, their clothing replaced by uniforms marking them property of the state, their resumes forever tarnished by their records, every aspect of their futures constrained by the errors of their youth.”
Nell Bernstein, Against Reform: Beyond the Juvenile Prison, in Burning Down the House: The End of Juvenile Prison 307, 310 (2016).
Bernstein‘s recitation of the marks of imprisoned youth and the stigma that they carry are equally applicable
IV. WHERE THE RUBBER MEETS THE ROAD
In my view, evidence on the effectiveness and need for SORS for those who offend as juveniles, coupled with new gains in the science of adolescent development, leads to the conclusion that legislators, policymakers, and practitioners should reconsider the appropriateness of the application of SORS to those who offended as juveniles. SORS, at least as applied to juvenile offenders, offer very little help in providing for public safety from juvenile delinquents and aggravate—rather than alleviate—the issues that they were designed to address.12 Consequently, mitigation from their application is the best possible outcome for adjudicated youth. For that reason, application of the clear and convincing standard to a young person like J flies in the face of good outcomes for both adjudicated youth seeking to reform themselves and the larger community.
But if that is the obvious conclusion based on the research—and I think it is—why does Oregon still require a person who offended as a 13-year-old, who has participated in treatment, and who has not reoffended, like J, prove “by clear and convincing evidence” that he is “rehabilitated and does not pose a threat to the safety of the public” to avoid the stigma of sex offender registration as an adult? I believe that the answer to that question is that the public‘s belief in “the myth” has caused legislators to adopt an approach of caution and slow marginal change even in the face of overwhelming data.13