State v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark

Cherry, J., with whom Hardesty and Saitta, JJ., agree,

dissenting:

I would deny the petition because I conclude that the retroactive application of mandatory sex offender registration and community notification requirements on juvenile sex offenders violates the Ex Post Facto Clauses of the United States and Nevada Constitutions. U.S. Const, art. I, § 10; Nev. Const, art. 1, § 15.

I agree that the Supreme Court’s decision in Smith v. Doe, 538 U.S. 84 (2003), provides the appropriate framework for analysis of this issue. I also agree that Logan fails to demonstrate that the legislative intent of A.B. 579 was to punish. I conclude, however, that the statutory scheme, when applied to juvenile sex offenders, is “so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. at 92 (internal quotation marks and brackets omitted).

Initially, I agree with the majority’s conclusions regarding four of the seven factors—that the statutory scheme does not promote the traditional aims of punishment, is rationally related to a legitimate state interest, is not based on a finding of scienter, and applies to conduct that is already a crime. I disagree with the majority’s conclusions regarding the remaining factors, however.

Historical form of punishment

First, I conclude that registration and community notification, as applied to juvenile sex offenders, are akin to the historical punishments of branding and shaming. The Smith Court rejected this argument, in part, because any resulting stigma arose from the dissemination of accurate information about an offender’s criminal record—the majority of which was already public—not from any public display for ridicule and shaming. Id. at 98. The Court therefore concluded that publication of sex offenders’ records on a website is “more analogous to a visit to an official archive of crim*524inal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Id. at 99. This analogy fails when applied to juvenile sex offenders because juveniles’ records are inaccessible to the general public in the absence of a court order. See NRS 62H.030(2)-(3).

I recognize that, prior to A.B. 579, juvenile community notification allowed the disclosure of records of Tier II and III juvenile sex offenders. Office of the Nev. Attorney Gen., Nevada Guidelines and Procedures for Community Notification of Juvenile Sex Offenders, Office of the Attorney General, § 8.00(3)-(4) (Rev. Feb. 2006). This disclosure, however, was limited to persons or entities who were “reasonably likely to encounter the juvenile sex offender.” Id. That is a far cry from the notification provisions of A.B. 579, under which any member of the public, likely to encounter the juvenile or not, must be provided with the juvenile sex offender’s registration information upon request.1 NRS 179B.250; NRS 179D.475. In my opinion, the limited disclosure of juvenile sex offender records that existed prior to A.B. 579 does not allow for the conclusion that the bill’s community notification provisions are “analogous to a visit to an official archive of criminal records.”

Affirmative disability or restraint

Second, I conclude that A.B. 579 imposes an affirmative disability or restraint on juvenile sex offenders. As acknowledged by the Smith Court, the public availability of conviction information ‘ ‘may have a lasting and painful impact on the convicted sex offender.” 538 U.S. at 101. The Court concluded that community notification did not impose disabilities or restraints on adult offenders because any adverse consequences, such as occupational or housing disadvantages, flow not from community notification provisions, but from the fact of conviction, which is a matter of public record. Id. The Court also noted that adverse consequences could have otherwise occurred via the use of routine background checks by employers and landlords. Id. at 100.

Such reasoning cannot be applied to juvenile sex offenders, whose records are not generally public. Because juvenile sex offender records were not available to the public in the absence of a court order, NRS 62H.030(2), routine background checks would not reveal these records. As discussed above, A.B. 579’s community notification requirements greatly expand the limited disclosure of records that occurred under juvenile community notification. *525The prior limited disclosure does not justify the conclusion that the bill does not impose an additional affirmative disability or restraint on juvenile sex offenders. I conclude that any occupational or housing disadvantages suffered by delinquent sex offenders result not from the fact of adjudication, but directly from the community notification requirement. See State v. C.M., 746 So. 2d 410, 418 (Ala. Crim. App. 1999) (concluding that subjecting juvenile sex offenders to registration and community notification requirements imposed an affirmative disability or restraint in part because it exposed confidential adjudication records to the public). And I note that such discrimination is particularly burdensome on juveniles who are newly independent and have not yet had the opportunity to establish themselves in the world. See In re C.P., 967 N.E.2d 729, 741-42 (Ohio 2012) (considering stigmatization and other negative consequences of community notification on juvenile offenders in the context of a cruel-and-unusual-punishment claim).

The majority concludes that the notification provisions themselves do not impose any negative consequences because those consequences “result indirectly from the public’s response to knowledge of the adjudication.” See majority opinion ante at 514. This conclusion fails to account for the real-world effect of A.B. 579’s notification provisions. But for those provisions, the public would have no easy means to access juvenile sex offenders’ records. For these reasons, I conclude that A.B. 579 imposes an affirmative disability or restraint on juvenile sex offenders.

Excessiveness

Third, I conclude that A.B. 579 is excessive in relation to its purpose. I am cognizant of the fact that the excessiveness analysis is not an inquiry into “whether the legislature has made the best choice possible to address the problem it seeks to remedy.” Smith, 538 U.S. at 105. Nevertheless, I conclude that the statutory scheme, as applied to juvenile sex offenders, is not reasonable in light of the Legislature’s nonpunitive objective. See id. (the exces-siveness inquiry focuses on “whether the regulatory means chosen are reasonable in light of the nonpunitive objective”).

The mandatory application of community notification requirements to juvenile sex offenders is unreasonable in light of the lower recidivism rates among juveniles as compared to adult offenders. See majority opinion ante at 517-18. And juvenile offenders are highly amenable to treatment. Justice Policy Institute, The Negative Impact of Registries on Youth: Why are Youth Different from Adults?, available at http://www.justicepolicy.org/ uploads/justicepolicy/documents/08-08_fac_sornakidsaredifferent_ jj.pdf; Affidavit of Dr. Rayna Rogers ¶ 18, Dec. 20, 2007 (noting that “most youthful offenders can be fully treated” and their “re*526cidivism rate is significantly lower than adult offenders”) (exhibit to motion filed in district court on Dec. 28, 2007). Juveniles’ amenability to treatment is especially significant because the juvenile justice system is specifically designed to provide juvenile delinquents with needed treatment. See NRS 62G.410 (“It is the policy of this state to rehabilitate delinquent children.”); see also NRS 62A.360(l)(a) (every child under the jurisdiction of the juvenile court shall receive the guidance, care, and control that is conducive to the best interest of the State and the child’s welfare); NRS 62E.280(l)(a) (the juvenile court may order any psychological, psychiatric, or other care or treatment that is in the best interest of the juvenile); NRS 63.180 (juvenile delinquents placed in state facilities receive a program of treatment aimed at altering behavior and attitude so that the juvenile may freely function in his or her regular environment).

Moreover, A.B. 579 imposes mandatory community notification requirements regardless of risk of reoffense and assigns juvenile sex offenders to a tier based solely on the offense committed. NRS 179D.115-.117; NRS 179D.441; NRS 179D.445; NRS 179D.460; NRS 179D.475. Considering juveniles’ low recidivism rates and amenability to treatment, it is my opinion that the statutory scheme is grossly overinclusive and needlessly sweeps up children who have a very low risk of recidivism. See Smith, 538 U.S. at 116-17 (Ginsburg, J., dissenting); Doe, 189 P.3d at 1017. Under this legislation, even juveniles who have successfully completed treatment and been certified as a low risk to reoffend will remain subject to registration and community notification requirements for a minimum of ten years. See NRS 179D.490. Further, adults, adjudicated delinquent perhaps decades ago, who have been rehabilitated and successfully reintegrated into society, will now be subject to its requirements. See NRS 179D.095(1).

Under the prior version of juvenile community notification, only organizations deemed reasonably likely to encounter a juvenile sex offender were actively notified of a juvenile’s presence in the community. Office of the Nev. Attorney Gen., Nevada’s Guidelines and Procedures for Community Notification of Juvenile Sex Offenders, Office of the Attorney General, § 8.0 (Rev. Feb. 2006). A.B. 579 requires that certain organizations be notified regardless of any likelihood of encountering a juvenile offender. NRS 179D.475(2). Such a broad scope of notification is completely unnecessary considering juveniles’ low recidivism rates and amenability to treatment. A.B. 579, as applied to juvenile sex offenders, is excessive in relation to its purpose of public protection.

Balancing all of the factors, I conclude that the imposition of mandatory registration and community notification requirements *527on juvenile sex offenders constitutes a punishment. See Bell v. Wolfish, 441 U.S. 520, 539 n.20 (1979) (explaining that harsh conditions imposed to achieve goals that can be attained in many alternative, less harsh ways generally supports a finding that the purpose of the conditions is to punish). Therefore, retroactive application of A.B. 579 to juvenile offenders violates the Ex Post Facto Clauses of the Nevada and United States Constitutions.

I wholeheartedly join my colleagues’ invitation to the Legislature to reconsider this legislation as applied to juveniles. I urge our legislators to give serious consideration to the concerns raised by the juvenile court and presented in this court’s opinion today.

Registration records are exempted from disclosure on the community notification website if the sex offender is a Tier I offender and was not adjudicated for a crime against a child. NRS 179B.250(7)(b).