JUVENILE JUSTICE

I. INTRODUCTION

The United States juvenile justice system is predicated upon the idea that “children are different.”[1] The juvenile justice system generally treats children charged with criminal conduct differently than adult offenders.[2] Juveniles are tried in a specialized court system that accounts for their age and greater potential for rehabilitation.[3] Juvenile courts allow the “state to act in the best interest of the juvenile, while at the same time allowing the juvenile to avoid any stigmas associated with trials and ‘adult’ court.”[4]

The juvenile system has focused “on rehabilitation, not punishment,” and has “traditionally recognized the importance of confidentiality in juvenile proceedings.”[5] Because of the “presumption that young offenders can often be rehabilitated,” juvenile offenders are treated differently from adults and are often punished differently or to a lesser degree than adults offenders.[6]

The United States Supreme Court has consistently held that under the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, juveniles are categorically exempt from certain types of sentencing such as the death penalty and incarceration for life without parole because of their strong ability to rehabilitate.[7]

While there is a presumption that juvenile offenders are more capable of rehabilitation, this presumption does not seem to extend to juveniles who have been adjudicated delinquent of sex offenses.[8] There were 747,408 registered sex offenders in the United States as of November 2011.[9] Of these registered sex offenders, approximately one third were juveniles.[10] Under the federal Adam Walsh Act, “all juveniles and adults who have been adjudicated or convicted of aggravated sexual abuse” are required to register and submit to community notification.[11] However, the registration and community notification requirements of the Adam Walsh Act contravene current Eighth Amendment jurisprudence regarding juveniles because these requirements “ignore the distinct differences between juvenile and adult sex offenders.”[12] It is not constitutional under the Eighth Amendment to require a juvenile offender to register as a sexual offender and submit to community notification like adult offenders because these requirements, “when strictly applied to all juvenile sex offenders, [run] counter to the rehabilitative component of the juvenile justice system.”[13]

This paper will explore how the Eighth Amendment has historically applied to juvenile offenders and how this jurisprudence has expanded on juvenile sentencing. Based upon juvenile developmental differences, Eighth Amendment protections should expand further to exempt juveniles from sentencing schemes, such as requiring juvenile sex offenders to submit to registration and community notification.

II. BACKGROUND

Juvenile offenders have not always been afforded constitutional protections that recognized their youth. It was not until the United States Supreme Court decided In re Gault that that juvenile justice system underwent substantial reform.[14] In the seminal case In re Gault, the Court held that juveniles involved in delinquency proceedings are entitled to due process procedural protections.[15] While In re Gault provided substantial constitutional protections to juvenile offenders, “the Court largely left states unsupervised in their reform efforts, even as many states dramatically shifted the purpose of juvenile justice from rehabilitation to punishment” and subjected juvenile offenders to increasingly harsher punishments.[16]

A. THE HISTORY OF JUVENILE SENTENCING SCHEMES

The U.S. Supreme Court has continuously addressed the idea of constitutional protections for juveniles in the context of the Eighth Amendment. The Eighth Amendment to the United States Constitution provides, in relevant part, that no cruel and unusual punishment shall be inflicted, nor excessive bail required or excessive fines imposed.[17] The Eighth Amendment is comprised of three clauses. The first clause prohibits excessive bail,[18] while the second clause prohibits excessive fines.[19] The third clause of the Eighth Amendment prohibits cruel and unusual punishment, but this clause, unlike the other clauses of the Eighth Amendment, does not have a proportionality requirement for cruel and unusual punishment.[20]

The Court has declined to hold the death penalty as per se cruel and unusual punishment violative of the Eighth Amendment,[21] but the Court’s Eighth Amendment jurisprudence as applied to juveniles has produced differing results. In Stanford v. Kentucky, a juvenile death penalty case, the Court ultimately affirmed the capital punishment of the juvenile defendant and declined to adopt a categorical rule exempting juveniles from capital punishment.[22] However, the Court’s plurality opinion looked to society’s “evolving standards of decency” and concluded that individualized sentencing is a constitutional requirement, especially in the “realm of capital punishment.”[23]

Stanford was eventually overturned by the Court’s landmark decision, Roper v. Simmons.[24] In Roper, the Court held that the death penalty was categorically disproportionate for juveniles offenders convicted of a capital offense under the Eighth Amendment, because juvenile offenders are more inclined to rehabilitate and be reformed than adult offenders.[25] The Court emphasized three distinct differences between juvenile and adult offenders that “demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.”[26] First, juveniles have a lack of maturity that “often result in impetuous and ill-considered actions and decisions.”[27] Second, juveniles are also “more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”[28] The third distinction is that the “personality traits of juveniles are more transitory, [and] less fixed” which demonstrate that a juvenile is not as “well formed as that of an adult.”[29] The majority cited numerous social science studies to support its conclusion that a juvenile’s “irresponsible conduct is not as morally reprehensible as that of an adult.”[30]

The Roper decision was the Court’s first major decision to fully recognize that juvenile offenders deserve different treatment than adult offenders. Roper paved the way for an expansion of constitutional protections for juveniles. In 2010, the Court decided Graham v. Florida, holding that a sentence of life without parole is not a proportionate sentence for a juvenile convicted of a non-capital offense.[31] The Graham Court reaffirmed Roper by finding that “it would be misguided to equate the failings of a minor with those of an adult” because of the juvenile’s susceptibility to reform and rehabilitation.[32] The Court stated that “life without parole is the ‘second most severe penalty permitted by law.’”[33] For a juvenile, “life without parole is an especially harsh punishment.”[34] In regards to juvenile noncapital offenders, no legitimate penological objective is served by imposing a sentence of life without parole.[35] The Court determined that a sentence that lacks “any legitimate penological justification is by its nature disproportionate to the offense.”[36] This, coupled with the diminished capacity of a juvenile offender, supported the Court’s holding that sentencing a juvenile to life without parole is a per se violation of the Eighth Amendment.[37]

Eighth Amendment protections for juveniles expanded even further when the Court held in Miller v. Alabama that mandatory sentencing schemes requiring life imprisonment without parole were unconstitutional for juvenile offenders.[38]Miller relied on Roper and Graham to conclude that “children are constitutionally different from adults for purposes of sentencing,”[39] and that “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”[40] The Miller holding required that the criminal justice system treat juveniles differently than adults by utilizing individualized consideration for juvenile sentencing. Miller marked the first time the Court “fully embraced the need for special procedures governing juvenile sentencing, carving out a special category of protections akin to protections provided in the death penalty context.”[41]

Most recently, the Court decided Montgomery v. Louisiana, where the Court retroactively applied Miller to hold that inmates sentenced to life without parole as juveniles were eligible for resentencing or the possibility of parole.[42]

B. JUVENILE SEX OFFENDER REGISTRATION

The juvenile justice system has undoubtedly evolved through Roper and its progeny. Despite the strides made in expanding sentencing protections for juveniles, current legislation requiring juveniles to register as sex offenders seems to contravene existing Eighth Amendment jurisprudence as applied to juveniles. Just as juvenile sentencing has a rich history in U.S. Supreme Court decisions, juvenile sex offender registration has a history of its own. Juvenile sex offender registration and community notification have not been addressed by the U.S. Supreme Court, and are ripe for constitutional challenge in light of the Court’s decisions regarding juvenile sentencing.

The first sex offender registration laws were enacted in 1947 in California, which required law enforcement to compile a list of all convicted sex offenders.[43] In 1990, the State of Washington became the first state to publicize its convicted sex offender registry.[44] These state statutes led the federal government to establish the Jacob Wetterling Act in 1994, which “served as the backbone and catalyst for federal sex offender registration laws.”[45] The Jacob Wetterling Act’s purpose was to “require sex offenders to register with their state once released from prison, jail, or parole sentences,”[46] however, it did not require sex offenders to submit to community notification.[47] Consequently, Congress was concerned that sex offenders would simply relocate to other states to avoid registering as a sex offender and enacted the Jacob Wetterling Act to address this problem by ensuring that each state had a sex offender registry.[48] Because Congress could not mandate that the states enact the Jacob Wetterling Act, Congress threatened to reduce states’ federal funding by 10% if the states did not comply with its requirements.[49]

Congress again passed legislation in 1994 that required community notification for all sex offenders.[50] This legislation was known as Megan’s Law, and it “not only permitted states to collect information on sex offenders,” but states were also required to publicize this information.[51] The enactment of Megan’s Law “marked the birth of federally mandated community notification.”[52]

The Jacob Wetterling Act was repealed in its entirety by the 2006 enactment of the Adam Walsh Act, which is the current set of laws that govern sex offender registration and community notification.[53] Title I of the Adam Walsh Act, entitled SORNA,[54] created the National Sex Offender Registry, which sought to unify the different registration requirements of each state.[55] SORNA was enacted to address “the growing epidemic of sexual violence against children,”[56] and established “minimum standards that seek to strengthen the nation’s sex offender registration notification programs.”[57] SORNA has broadened sex offender registration requirements to “include an expanded group of sex offenses and sex offenders.”[58] According to the U.S. Attorney’s SORNA guidelines, registration and community notification requirements help the public to “take common sense measures for the protection of themselves and their families, such as declining the offer of a convicted child molester to watch their children or head a youth group, or reporting to the authorities approaches to children or other suspicious activities by such a sex offender.”[59] Additionally, SORNA guidelines provide that knowledge of the sex offender by the public reduces the likelihood that the sex offender will be presented with opportunities to reoffend.[60]

Under SORNA, a sex offender is defined as an “individual who was convicted of a sex offense.”[61] SORNA classifies sex offenders using a three-tiered system based on the severity of the offense that was committed.[62] Each tier imposes different time requirements for registration, notification, and verification appearance requirements.[63] Unlike previous sex offender legislation, SORNA “lengthens the duration of registration and increases the amount of information available on public sex offender registries.”[64] SORNA requires a sex offender to provide information including the offender’s name and address, Social Security number, the name and address of the offender’s employer, the name of the offender’s school if the offender is a student, the offender’s license plate number and a description of any vehicle owned or operated by the offender, a physical description of the offender, the offender’s entire criminal history, information relating to intended travel of the sex offender outside the U.S., a current photograph of the offender, palm prints, a DNA sample, and a copy of the offender’s driver’s license or other ID card.[65] An offender must keep this information current for the full registration period, which is 15 years for a Tier I offender and 25 years for a Tier II offender.[66] For Tier III offenders, those who have committed the most serious offenses, this period is for the entire life of the offender.[67]

The most significant difference between SORNA and previous federal sex registration laws is that SORNA applies to both adult and juvenile sex offenders.[68] Under SORNA, juveniles who are convicted of a sex offense are required to register if the juvenile meets certain qualifications. The juvenile offender must be fourteen years of age or older at the time of the offense, and the adjudicated offense by the juvenile must be comparable to, or more severe, than aggravated sexual abuse as defined by 18 U.S.C. § 2241, or the offense was an attempt to commit such an offense.[69] Most of the required registration information must be made available to the public, and the statute makes no distinction between juvenile or adult offenders.[70]

III. DISCUSSION

The history of the Eighth Amendment has shown that the Court has disfavored subjecting juveniles to some of the harshest criminal penalties, and the criminal justice system’s “evolving standards of decency” continue to support the basis for greater constitutional protections for juvenile offenders.[71] SORNA’s requirements as applied to juvenile sex offenders seem to undermine the Supreme Court’s decisions in Roper, Graham, and Miller because SORNA fails to distinguish juvenile offenders from their adult counterparts. SORNA does not take into account an offender’s age and fails to recognize rehabilitation as the objective of the juvenile justice system.

A. JUVENILE PROTECTIONS UNDER THE EIGHTH AMENDMENT

Because “children are constitutionally different from adults for purposes of sentencing,”[72] requiring a juvenile to register as a sex offender and submit to community notification, in some cases for life, is not proportional and thus considered cruel and unusual punishment for Eighth Amendment purposes. SORNA’s registration and community notification requirements directly contradict Roper, Graham, and Miller’s categorical treatment of juveniles under the Eighth Amendment because it allows juveniles to be “classified among the worst offenders.”[73]

The Roper Court created a new and separate class for juvenile offenders by imposing a categorical prohibition against juvenile capital punishment.[74] The Roper decision hinges on the idea that the age of an offender is itself a mitigating factor that affects sentencing. Roper, when applied to SORNA, invalidates SORNA’s juvenile registration and community notification requirements. SORNA fails to recognize that a juvenile is incapable of appreciating his or her criminal conduct like that of an adult offender. By subjecting a juvenile offender to lifetime registration requirements and public disclosure of personal information, SORNA departs significantly from Roper.

Although Roper was concerned only with juvenile capital punishment, and SORNA is not, the Court has still applied Roper’s Eighth Amendment proportionality analysis to noncapital sentencing in both Graham and Miller. In Graham, the Court determined that “penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders” because the “the severity of life without parole sentences.”[75] In Miller, the Court reaffirmed the Roper principle by further emphasizing that juveniles are a separate class of offenders and are entitled to individualized consideration of their age before sentencing.[76] The Miller holding established a special right for all juvenile offenders, not just juvenile capital offenders that required age to be sentencing consideration under mandatory sentencing schemes.

However, under SORNA, juveniles are subjected to some of the harshest possible penalties under the law, and a sentencing scheme that carries such lifetime penalties is likened to the death penalty or life-without-parole sentencing. While SORNA does have “clean record” provisions that allow Tier III offenders to reduce their registration period if they maintain a clean record for twenty-five years,[77] SORNA does not categorically exempt such juveniles from registration and community notification requirements, which is problematic under current Eighth Amendment jurisprudence. Under SORNA, a clean record means the offender is not subsequently convicted of any felony or sex offense, the offender successfully completes any imposed probation, parole, or supervised release, and the offender successfully completes a certified sex offender treatment program.[78] For a juvenile required to register as a sex offender under SORNA, the juvenile is permitted to reduce his or her registration requirement from life to the number of years during which he or she maintains a clean record, but this time period may be no less than twenty-five years of the required registration.[79] Another problematic aspect of SORNA’s clean record provisions is that these provisions are not available to all juvenile offenders; a juvenile who has been convicted as an adult is not allowed to reduce the lifetime duration of their registration requirements.[80]

To comport with the Court’s current Eighth Amendment jurisprudence as applied to juveniles, SORNA should treat all juvenile offenders as a separate class with protections that uphold the penological objectives of rehabilitation. Instead, under SORNA’s current scheme, juveniles are subjected to the same punishment as adults. Even though clean record provisions are available to some juveniles, not all juveniles are permitted to reduce their registration requirements. Moreover, juveniles convicted as adults are not permitted to reduce their registration requirements even though they are under age eighteen. As a result, SORNA does not promote rehabilitation for juveniles, which has been the focus of juvenile justice. Additionally, SORNA does not incentivize certain juveniles from engaging in further criminal conduct, thus enhancing the likelihood that those juveniles may engage in criminal activity as adults.[81] In sum, SORNA’s requirements are, at a minimum, inflexible when applied to juveniles and fail to differentiate between juvenile and adult offenders. SORNA’s requirements do not support the rehabilitative objectives of the juvenile justice system or the Court’s decisions in Roper, Graham, or Miller. Based on this precedent alone, SORNA is unconstitutional.

B. THE IMPLICATION OF SORNA ON JUVENILE SEX OFFENDERS

In addition to undermining the Supreme Court’s interpretation of the Eighth Amendment as applied to juveniles, there are several key policy reasons why a juvenile should be categorically exempt from SORNA’s registration and community notification provisions. Juveniles accounted for only 10.8% of total arrests in 2012.[82] Of forcible rape arrests, only 14% were juveniles.[83] A much higher percentage of juveniles were arrested for property crimes rather than violent crimes.[84] By comparison, 88.3% of adults arrested in 2012 committed violent crimes, with 86% of these violent arrests being for forcible rape.[85] These statistics highlight the difference between adult and juvenile offenders, and suggest that perhaps “adolescent sex crimes can be attributed to immaturity, irresponsibility, peer pressure, and undeveloped character.”[86] Moreover, juvenile sexual behavior problems can be traced back to numerous factors, including sexual and physical abuse of the juvenile, or the juvenile’s exposure to violent or aggressive role models, substance abuse, and pornography.[87]

Juveniles have lessened culpability than adults because they are less developed than adults physically, mentally, and emotionally.[88] Because the juvenile court system is separate from the adult court system, the juvenile system accounts for juvenile offenders’ development and focuses on rehabilitative alternatives to punishment.[89] The juvenile court system has “allowed the state to act in the best interest of the juvenile, while at the same time allowing the juvenile to avoid any stigmas associated with trials and ‘adult’ court.”[90] Research suggests that juvenile sex offenders are more amenable to treatment than adult sex offenders,[91] and numerous studies continue “to confirm that juvenile sex offenders have extremely low rates of recidivism.[92] Because of this, juveniles require a more rehabilitative-focused treatment that recognizes the juvenile’s physical, mental, and emotional development.

SORNA ignores the rehabilitative concept of juvenile justice and imposes permanent stigmatizing effects on juvenile offenders that could possibly damage juvenile development and treatment. Because of the growing requirements imposed on sex offenders, recent research has unveiled the possible effects that registration and community notification have on juvenile sex offenders. At a minimum, a juvenile offender and the offender’s family will face public humiliation and isolation associated with the stigma of being a sex offender.[93] Additionally, registering as a sex offender “may prevent juveniles from entering schools, colleges, and any other institution that would prepare the juvenile for a conventional lifestyle.”[94] SORNA’s provisions also inhibit a juvenile’s employment opportunities.[95]

Furthermore, juveniles who are labeled as sex offenders are less likely to change their patterns of reoffending, because the sex offender label “may be reinforcing specific patterns of re-offending” in juveniles.[96] Juvenile sex offenders have a lower rate of recidivism than adult sex offenders.[97] The combination of “low rates of recidivism and successful treatment methods of treatment for juvenile sex offenders” shows that requiring juveniles to register as sex offenders in the same manner as adult offenders could disrupt the juvenile’s rehabilitation process.[98]

C. SORNA CONFLICTS WITH STATE SEX OFFENDER REGISTRATION LAWS

Many states view SORNA’s minimum requirements as a regression on progress on sex offender legislation that has been made by the states over the past decade.[99] Under SORNA, states that have adopted individualized risk-based systems for imposing registration requirements on sexual offenders are required to adopt a uniform offense-based system, which some states believe to be less effective and compromise public safety.[100]

Eight years after SORNA’s minimum requirements for registration were passed by Congress, “twenty-eight states were still struggling with the costs and bureaucratic nuisance of implementing” SORNA’s requirements.[101] “One of the most commonly stated barriers preventing states from substantially implementing” SORNA” was its provisions concerning juvenile sex offender registration.[102] States had a deadline of July 2011 to implement SORNA, or face a 10% reduction in federal Byrne Justice Assistance Grants (JAG), which are used by states to fund local court systems, crime labs, incarceration facilities, and other law enforcement programs and training.[103] Most of the states that had missed the deadline agreed to apply for funding and comply with SORNA and continue receiving the federal grant money.[104] However, as of 2014, Arizona, Arkansas, California, Texas, and Nebraska opted not to comply with SORNA completely and did not even apply for the JAG federal funding.[105]

Montana is one of the many states that has not fully implemented SORNA. Under Montana law, judges have greater discretion in whether or not to require a juvenile to register as a sex offender.[106] Under Montana’s Sexual or Violent Offender Registration Act, all sex offenders, including juveniles, are required to register.[107] The sex offender is required to provide information upon registration, which is published in an online registry called Sexual or Violent Offender Registry (SVOR).[108] However, a court may exempt a juvenile who has been adjudicated for a sexual offense from registration if the court finds that the juvenile has not previously been found to have committed or been adjudicated for a sexual offense, and registration is not necessary for protection of the public and is in the best interest of the public.[109] Additionally, a juvenile sex offender in Montana is subjected to the same registration requirements as an adult sex offender, except that a court has discretion in ordering a lesser duration of registration.[110] SORNA’s requirements are the minimum requirements for sex offender registration and community notification, and these requirements conflict with Montana’s sex offender registration laws. SORNA does not allow judges to use discretion and consider individualized sentencing when imposing registration and community notification on juvenile offenders, but instead mandates that a juvenile offender register and submit to community notification based entirely on the juvenile’s adjudication as a sex offender.

IV. CONCLUSION

In sum, it is unconstitutional to impose SORNA’s sex offender registration and community notification requirements on juvenile offenders. The effects of SORNA’s registration and community notification requirements have a detrimental effect on juveniles, because “children are constitutionally different than adults” and cannot be treated the same as adult offenders for sentencing purposes.[111] Juveniles are incapable of appreciating their criminality, and are often motivated by peer pressure and other influences, and subjecting them to lifetime penalties under SORNA fails to recognize these important distinctions between juvenile and adult offenders. SORNA also “fails to distinguish between juvenile offenders who can successfully be rehabilitated and those who are a real danger to the public.”[112]

The Eighth Amendment has continued to expand to categorically exempt juvenile offenders from some of the harshest criminal penalties, and the criminal justice system’s “evolving standards of decency” continue to support the basis for greater constitutional protections for juvenile offenders.[113] SORNA not only contradicts state sex offender registration legislation that allows for courts to give individualized consideration of the juvenile at sentencing, but it contravenes the Court’s Eighth Amendment jurisprudence regarding juvenile offenders because it does not categorically exempt juveniles from the same punishment as adults. The Court’s decisions in Roper, Graham, and Miller show that an imposition of the most severe penalties on juvenile offenders is cruel and unusual punishment, and as the Court made clear in Miller, the juvenile justice system cannot treat juveniles as adults and “proceed as though they were not children.”[114]

[1] Miller v. Alabama, 132 S. Ct. 548, 2470 (2011).

[2] Jennifer S. Breen and John R. Mills, Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama, Spring 2015, 52 AM. CRIM. L. REV. 293 (Spring 2015).

[3]Id.

[4] Richard A. Paladino, The Adam Walsh Act as Applied to Juveniles: One Size Does Not Fit All, HOFSTRA L. REV., 270, 286 (Fall 2011).

[5] Jessica E. Brown, Classifying Juveniles “Among the Worst Offenders”: Utilizing Roper v. Simmons to Challenge Registration and Notification Requirements for Adolescent Sex offenders, 39 STETSON L. REV. 369, 371 (Winter 2010).

[6] Britney M. Bowater, Adam Walsh Child Protection and Safety Act of 2006: Is there a better way to tailor the sentences of juvenile sex offenders?, 57 CATH. U. L. REV. 817 (Spring 2008).

[7] U.S. CONST. AMEND. VIII (see also Roper v. Simmons, 543 U.S. 551, 568-75 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 132 S. Ct. 2455 (2012)).

[8] Bowater at 819.

[9] Paladino at 270.

[10]Id.

[11] Bowater at 819.

[12] Brown at 370.

[13] Bowater at 820-21.

[14] In re Gault, 387 U.S. 1 (1967).

[15]Id. at 30-31.

[16] Breen and Mills at 296.

[17] U.S. CONST. AMEND. VIII.

[18]Id. at § 1.

[19]Id. at § 2.

[20]Id. at § 3 (see also Furman v. Georgia, 408 U.S. 238, 239 (1972), holding that the Eighth Amendment is applicable to the states through the Fourteenth Amendment to the U.S. Constitution).

[21]Furman, 408 U.S. at 239 (1972).

[22] Stanford v. Kentucky, 492 U.S. 361 (1989).

[23]Id. at 375, 378.

[24]Roper, 543 U.S. at 568-75 (2005).

[25]Id. at 570, 578.

[26]Id. at 569.

[27]Id. at 569.

[28]Id.

[29]Id. at 570.

[30] Roper, 543 U.S. at 570 (quoting Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)).

[31]Graham, 560 U.S. 48 (2010).

[32]Id. at 68 (citing Roper, 543 U.S. at 570).

[33]Id. at 69 (quoting Harmelin v. Michigan, 501 U.S. at 1001)

[34]Id. at 70-71.

[35]Id.

[36]Id.

[37]Id. at 74.

[38]Miller, 132 S. Ct. at 2460.

[39]Id. at 2464.

[40]Id. at 2465.

[41] Breen and Mills at 308-09.

[42] Montgomery v. Louisiana, 577 U.S. _____, slip op. (2016).

[43] Paladino at 273-74.

[44]Id.

[45]Id. at 274-75.

[46]Id. at 275-76.

[47]Id. at 276.

[48]Id.at 275-76.

[49]Id. at 276.

[50]Id.

[51]Id. at 277 (Fall 2011).

[52] Bowater at 823.

[53] Paladino at 278.

[54] Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109-248, 120 Stat. 590 (codified at 42 U.S.C. §§ 16901-16962 (2006).

[55] Paladino at 279.

[56] H.R. REP. NO. 109-218, pt. 1, at 20 (2005).

[57] Brown at 371.

[58]Id.

[59]U.S. Department of Justice Office of the Attorney General, the National Guidelines for Sex Offender Registration and Notification 17, (SORNA Guidelines) at 4 (May 20, 2010), http://www.smart.gov/pdfs/final_sornaguidelines.pdf.

[60]Id.

[61] 42 U.S.C. § 16911(1).

[62] Paladino at 279 (quoting Sex Offender Registration and Notification Act, 42 U.S.C. § 16911(2)-(4)).

[63] 42 U.S.C. §§ 16915(a)(1)-(3), 16916.

[64] Brown at 371.

[65] 42 U.S.C. § 16914.

[66]Id. at 42 U.S.C. § 16915(a)(1)-(3).

[67]Id. at 42 U.S.C. § 16915(a)(3).

[68] Paladino at 281 (quoting 42 U.S.C. § 16911(2)-(4)).

[69] 42 U.S.C. § 16911(8).

[70]Id. at 42 U.S.C. § 16918.

[71]Stanford, 492 U.S. at 375, 378.

[72]Miller, 132 S. Ct. at 2470.

[73]Roper, 543 U.S. at 571.

[74]Id. at 572-574.

[75]Graham, 560 U.S. at 74-75.

[76]Miller, 132 S. Ct. at 2469-70.

[77] 42 U.S.C. § 16915(b)(2).

[78]Id. at 42 U.S.C. § 16915(b)(1).

[79] Brown at 384.

[80] SORNA Guidelines at 57.

[81] Paladino at 286.

[82] C. Puzzanchera and W. Kang, “Easy Access to FBI Arrest Statistics 1994-2012” (2014). http://www.ojjdp.gov/ojstatbb/ezaucr/.

[83]Id.

[84]Id.

[85]Id.

[86] Brown at 389.

[87]Center for Sex Offender Management, Understanding Juvenile Sexual Offending Behavior: Emerging Research, Treatment Approaches and Management Practices, 8, 1, 2 (1999), http://csom.org/pubs/juvbrf10.pdf.

[88] Paladino at 286.

[89]Id. at 286.

[90]Id.

[91]Id. at 289 (quoting NCSBY Fact Sheet, What Research Shows About Adolescent Sex Offenders, National Center on Sexual Behavior of Youth (2003)).

[92] Paladino at 291 (referencing Michael F. Caldwell et al., An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles: Evaluating the Ability to Predict Sexual Recidivism, 14 Psychol. Pub. Pol’y and L. 89, 101, 105 (2008); Elizabeth Letourneau and Kevin S. Armstrong, Recidivism Rates for Registered and Nonregistered Juvenile Sexual Offenders, 20 Sexual Abuse 393, 400, 403 (2008), Gregory Parks and David E. Bard, Risk Factors for Adolescent Sex Offender Recidivism: Evaluation of Predictive Factors and Comparison of Three Groups Based Upon Victim Type, 18 Sexual Abuse 319, 337 (2006), Donna M. Vandiver, A Prospective Analysis of Juvenile Male Sex Offenders: Characteristics and Recidivism Rates as Adults, 21 J. Interpersonal Violence 673, 685 (2006)).

[93] Paladino, at 289 (quoting Nastassia Walsh & Tracy Velazquez, Registering Harm: The Adam Walsh Act and Juvenile Sex Offender Registration, Champion 22 (Dec. 2009).

[94]Id. at 287.

[95]Id. at 289 (referencing Michael F. Cladwell, What We Do Not Know About Juvenile Sexual Reoffense Risk, 7 Child Maltreatment 291, 302 (2002)).

[96] Paladino at 290-91 (referencing Elizabeth J. Letourneau and Michael H. Miner, Juvenile Sex Offenders: A Case Against the Legal and Clinical Status Quo, 17 Sexual Abuse 293 (2005)).

[97] Center for Sex Offender Management at 4.

[98] Paladino at 290.

[99] Paladino at 285 (citing Andrew J. Harris and Christopher Lobanov-Rostovsky, Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States, 2 Crim. Just. Poly’y Rev. 202, 218 (2010)).

[100] Paladino at 285.

[101] Prison Legal News, Some States Refuse to Implement SORNA, Lose Federal Grants, 54 (September 19, 2014), https://www.prisonlegalnews.org/news/2014/sep/19/some-states-refuse-implement-sorna-lose-federal-grants/.

[102] Paladino at 284.

[103] Prison Legal News at 54.

[104]Id.

[105]Id.

[106] Mont. Code Ann. § 41-5-1513 (2015).

[107] §§ 46-23-501-520.

[108] Montana Sexual and Violent Offender Registry, https://app.doj.mt.gov/apps/svow/.

[109] § 41-5-1513(1)(d)(i)-(ii).

[110] § 41-5-1513(6).

[111]Miller, 132 S. Ct. 2455.

[112] Brown at 409.

[113]Stanford, 492 U.S. at 375, 378.

[114]Miller, 132 S. Ct. 2466.