SORNA and the Constitutionality of Juvenile Sex Registries

Constantino Themelis

In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA) which “created a new baseline of sex offender registration and notification standards for jurisdictions to implement.” [1] [2] The program was more extensive and robust than its precedent because it expanded the number of sex offenses that must be registered to “all state, territory, tribal, federal and military sex offense convictions, as well as certain foreign convictions.” [3] However, the bill raises issues for handling juvenile offenders. With scientific research suggesting weaker cognitive capabilities in developing juvenile minds, the bill poses a potential issue with juveniles’ right to due process and protection from cruel and unusual punishment. 

The bill was passed in the wake of several instances of youth sex violence. According to an FBI brief published in late 2007, “Child sex offenses (were) among the fastest growing offenses of the Federal criminal caseload from 1994 to 2006,” an alarming prospect considering the heinousness of the crime. [4] SORNA, sometimes called the Adam Walsh Act, was named after Adam Walsh, a child who went missing in a department store and whose remains were only partly found weeks later. [5] [6] 

Adam’s father John Walsh then dedicated his life to prevent similar crimes. Relatives of victims of child sex crime like Mr. Walsh have been grieving for years over their lost loved ones. Sexual violence and violent crime can have an impact on children who survive as well as their family members. A study by the Cochrane Developmental, Psychosocial, and Learning Problems Group showed that “it is well‐established that experiencing sexual abuse and violence can have a range of detrimental impacts.” [7] Advocating for a punitive stance toward similar offenders in a “tough on crime” way is a common approach. Additionally, “strengthen(ing) the nationwide network of sex offender registration and notification programs” is viewed as a practical step in enforcing the law. [8] 

Beyond personal motivation, there was also federal motivation for the bill to pass. SORNA facilitated the creation of the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART), an entirely new agency meant to connect the registration process to the executive bureaucracy through the attorney general. [9] [10] Not only does this add a component of federal responsibility, but it also allows the executive administration to directly draw a line to a “tough on crime” policy. This aligns with the response that nonprofits like the National Center for Missing and Exploited Children (created by John Walsh) seek. [11] 

A more rigorous system and a federal agency may not be enough to fix the issue. The juvenile registration aspect of SORNA has made some skeptical. For example, 11-year-old Jacob C from Michigan was ruled adjudicated delinquent after being caught touching his sister’s genitals. [12] Jacob had to “deal with the trauma” of growing up on the registry which included struggling to be allowed to graduate high school, being followed around campus in college, and even having to check in daily with police when he moved to Florida. [13] 

Due to the registry, Jacob will feel lasting effects from an action he took as an 11-year-old. As our understanding of the brain gets better, that consequence becomes less and less justifiable. According to recent neurological research, “the brain grows an excessive number of connections between brain cells prior to adolescence, but at about age 11 or 12, the brain begins the processing of “sculpting” or pruning-back a significant proportion of these connections…pruning helps the brain to build the longer chains of nerve cells needed during adulthood for complex decision making.” [14] Jay Giedd, Child Psychiatry researcher at the University of California Santa Barbara, included in his revolutionary study on youth brain development that, “The dorsal lateral prefrontal cortex, important for controlling impulses, is among the latest brain regions to mature without reaching adult dimensions until the early 20s.” [15]

With the issue of juvenile capability seemingly pointing to a lack of capability to make decisions, SORNA runs into issues with the 8th Amendment’s “cruel and unusual punishment” clause as it “guarantees individuals the right not to be subjected to excessive sanctions.” [16] [17] That “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’.” [18] The question of life on the registry hangs over SORNA. Is the crime itself, considering the lack of mental agility and capacity of juveniles, odious enough to overlook the science?  

SORNA has already been the source of many legal challenges, one being in Pennsylvania’s High Court. The argument was that SORNA violated the right to reputation under the 14th Amendment due process clause. [19] The Pennsylvania Supreme Court “conclude(d) that SORNA's irrebuttable presumption does not pass constitutional muster”. [20] Due to the fact that the right to reputation is already protected under the 14th Amendment in Pennsylvania, the case to undermine SORNA is less of an undertaking. [21] The Supreme Court precedent states that violation of reputation must be aided by some kind of statutory entitlement being infringed upon by the federal government for due process to be violated. [22] 

SORNA has been reshaped in recent times (see 2008, 2016 guidelines), in favor of allowing local and state governments to take charge of how the registries are implemented. [23] [24] [25] There is more of an effort in “assist(ing) all jurisdictions in implementing the SORNA standards in their programs'.' [26] The change of stance by the federal government is largely due to states simply not complying with SORNA in favor of taking the 10% funding cut. [27]  More importantly, this opens up state challenges in states with acknowledgment of the right to reputation like that of Pennsylvania. Local governments with legislation that connects registries to reduced state benefits like Georgia, which restricts federal housing for those on sex offender registries, could face issues of due process. States gaining the responsibility for the due process of those on the sex offender registry opens them up to issues of violation in their implementation of SORNA. [28]

Some states like Pennsylvania protect the sole right to reputation without statutory entitlement and may be in line to overturn SORNA's constitutionality, and the other states may have enough considering the wealth of youth development research pointing to a lack of complex decision-making abilities in young people. [29] [30]

Regardless, SORNA poses a unique issue of heinous crimes and legislative overreach. Sex offenses represent some of the most life-altering crimes within our country, but how do we reconcile that with our best science and the possibility that the bill’s “tough on crime” stance may be having negative effects?

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1. Sex Offender Registration and Notification Act, H.R. 4472, 109th Cong. (2006).

2. “Legislative History of Federal Sex Offender Registration and Notification.” Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Accessed February 15, 2024. https://smart.ojp.gov/sorna/current-law/legislative-history#:~:text=In%202006%2C%20Congress%20passed%20the,have%20added%20to%20SORNA%27s%20provisions.

3. Ibid 

4. Bureau of Justice Statistics. "Police Use of Force: Overview of National and Local Data." Washington, DC: U.S. Department of Justice, Office of Justice Programs, 2006. Accessed February 15, 2024. https://bjs.ojp.gov/content/pub/pdf/fpcseo06.pdf.

5. H.R. 4472, 109th Cong. (2006).

6. "Adam Walsh Case: 40 Years Later." CBS News, Accessed February 15, 2024. https://www.cbsnews.com/miami/news/adam-walsh-case-40-years-later/.

7. Brown, S.J., Carter, G.J., Halliwell, G., Brown, K., Caswell, R., Howarth, E., Feder, G., & O'Doherty, L. "Survivor, Family and Professional Experiences of Psychosocial Interventions for Sexual Abuse and Violence: A Qualitative Evidence Synthesis." Cochrane Database of Systematic Reviews 10, no. 10 (October 4, 2022): CD013648. doi:10.1002/14651858.CD013648.pub2.

8. H.R. 4472, 109th Cong. (2006).

9. H.R. 4472, 109th Cong. Page 120 STAT. 607 42 USC 16945

10. Ibid

11. "Impact," National Center for Missing & Exploited Children, Accessed February 15, 2024, https://www.missingkids.org/ourwork/impact.

12. Human Rights Watch. "The Raised Registry: Irreparable Harm of Placing Children on Sex Offender Registries in the US." Human Rights Watch, May 1, 2013. Accessed February 21, 2024. https://www.hrw.org/report/2013/05/01/raised-registry/irreparable-harm-placing-children-sex-offender-registries-us#_ftn1

13. Ibid 

14. Winters, Ken C., and Amelia Arria. "Adolescent Brain Development and Drugs." Journal of Adolescent Health 52, no. 2 (2013): 125-138. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3399589/#R11. 

15. Jay N. Giedd, "Structural Magnetic Resonance Imaging of the Adolescent Brain," Annals of the New York Academy of Sciences 1021 (2004): 77-85, DOI: 10.1196/annals.1308.009.

16. U.S. Const. amend. VIII.

17. Roper v. Simmons, 543 U. S. 551, 560 (2004).

18. Miller v. Alabama, 567 U.S. 460 (2012).

19. Commonwealth v. Torsilieri 659 Pa. 359, 232 A.3d 567 (2020)

20. Ibid 

21. Taylor v. Pa State Police of Commonwealth 132 A.3d 590 (2014)

22. Paul v. Davis 424 U.S. 693 (1976)

23. Department of Justice, "National Guidelines for Sex Offender Registration and Notification," Federal Register 73, no. 127 (July 2, 2008): 38030-38070, https://www.federalregister.gov/documents/2008/07/02/E8-14656/office-of-the-attorney-general-the-national-guidelines-for-sex-offender-registration-and. 

24. Department of Justice, "Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act," Federal Register 81, no. 70 (April 11, 2016): 21397-21400, https://www.federalregister.gov/documents/2016/04/11/2016-08249/title-of-the-notice

25. Department of Justice, "Registration Requirements Under the Sex Offender Registration and Notification Act," Federal Register 86, no. 236 (December 8, 2021): 69856-69887, https://www.federalregister.gov/documents/2021/12/08/2021-26420/registration-requirements-under-the-sex-offender-registration-and-notification-act. 

26. Commonwealth v. Torsilieri 659 Pa. 359, 232 A.3d 567 (2020)

27. SMART Office. "Byrne JAG Grant Reductions under SORNA." SMART Office. Accessed February 15, 2024. https://smart.ojp.gov/sorna/current-law/implementation-documents/byrne-jag-grant-reductions-under-sorna. 

28. Marah A. Curtis, Sarah Garlington, and Lisa S. Schottenfeld, "Alcohol, Drug, and Criminal History Restrictions in Public Housing," Cityscape 15, no. 3 (2013): 55-78, accessed February 15, 2024, https://www.huduser.gov/periodicals/cityscpe/vol15num3/ch2.pdf.

29. Paul v. Davis 424 U.S. 693 (1976)

30. Winters, Ken C., and Amelia Arria. "Adolescent Brain Development and Drugs." Journal of Adolescent Health 52: 125-138.