specially concurring:
In the case at bar, this court upholds the constitutionality of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 2000)), which requires 12-year-old J.W, who was adjudicated delinquent on two counts of aggravated criminal sexual assault, to register as a sex offender for the rest of his life. Although I believe this ruling to be legally correct, I write separately to express my concern over the harshness of this lifetime reporting requirement.
J.W. contends that imposing a lifetime registration requirement on juveniles, especially juveniles under the age of 13, violates substantive due process and the proscription against double jeopardy, and constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.
While I agree with the court that the registration requirements mandated by the plain language of the Registration Act are constitutionally valid, I recognize a certain tension between a lifetime reporting requirement and the philosophical underpinnings of our juvenile justice system.
According to the provisions of our Juvenile Court Act, a minor under the age of 13 can never be prosecuted under the criminal laws of this State, nor can a minor under the age of 13 be the subject of an extended juvenile prosecution. 705 ILCS 405/5 — 130, 5 — 805, 5 — 810 (West 2000). In my view, these provisions reflect a legislative understanding that children under the age of 13, no matter how serious the offense charged, “simply are too immature as a matter of law to be tried as an adult.” In re Registrant J.G., 169 N.J. 304, 325, 777 A.2d 891, 904 (2001). Children under the age of 13 have a diminished capacity to form criminal intent. It seems incongruous, then, to make no distinction in the treatment of juveniles under the age of 13 for purposes of the Registration Act.
I observe that, while all 50 states have adopted sex offender registration and community notification laws, often referred to as` Megan’s Laws (see State v. Misiorski, 250 Conn. 280, 292, 738 A.2d 595, 601-02 (1999) (providing historical explanation of Megan’s Laws and their adoption throughout the country)), the implementation of these laws, particularly with respect to juveniles, varies greatly from state to state. Some states do not expressly include juveniles in their law (see, e.g., Fla. Stat. Ann. § 775.21 (West 2000)), while others include only those juveniles who have been tried and convicted as adults (see, e.g., Del. Code Ann. tit. 11, § 4121 (a)(4)(b) (Supp. 2000)). In some instances, although registration requirements are made applicable to juveniles, the burden has been ameliorated by various means: by making a jury trial a condition precedent to juvenile registration, allowing the juvenile court the discretion to waive the registration requirement, providing that the duty to register will terminate at a certain age or by allowing the juvenile to petition for termination of the registration duty upon a clear showing that the juvenile has not reoffended and that registration is no longer necessary to protect the public.
I recognize that the laws in other jurisdictions which limit registration and notification requirements with respect to juveniles are the result of policy determinations made by the governing bodies of those states. I further recognize that the authority to determine appropriate public policy for this state is vested in our legislature and not with this court. Thus, barring a constitutional violation, this court is constrained to uphold the registration and notification laws of this state as written.
In the case at bar, this court holds that the requirements of the Registration Act apply equally to adults and juveniles and that our constitutional safeguards do not prevent the Registration Act’s lifetime registration provisions from being applied to minors of all ages. While I am compelled to agree with this determination, I, nevertheless, invite the legislature to reconsider the wisdom of imposing such a burden on juveniles, particularly juveniles under the age of 13. The public safety concerns which animate the registration and notification laws should be harmonized with our traditional understanding of the need to protect and rehabilitate the young citizens of this state.