Read this one while you still can. Because it's a powerful opinion. And one that, for better or worse, I'm not sure will be around all that long.
It's a classic Judge Reinhardt opinion. Well-written. Touching. Keenly aware of both doctrine as well as practice. Concerned about both people as well as about liberty.
To give a taste of both the form and substance of the opinion, here are the first several paragraphs:
"As a society, we generally refuse to punish our nation’s youth as harshly as we do our fellow adults, or to hold them to the same level of culpability as people who are older, wiser, and more mature. The avowed priority of our juvenile justice system (in theory if not always in practice) has, historically, been rehabilitation rather than retribution. Juvenile proceedings by and large take place away from the public eye, and delinquency adjudications do not become part of a young person’s permanent criminal record. Rather, young offenders, except those whose conduct a court deems deserving of treatment as adults, are classified as juvenile delinquents and placed in juvenile detention centers. Historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the “dissemination of truthful information” and “[t]ransparency” that characterizes the punitive system in which we try adults. [Cites]
In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Sex Offender Registration and Notification Act (“SORNA” or “the Act”) and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of
The retroactive application of SORNA’s juvenile registration provision affects people of all ages — not only juveniles.
As we are still close in time to SORNA’s passage, some, like S.E., were adjudicated delinquent relatively recently and are still minors or young adults. The vast majority of persons affected, however, were adjudicated delinquent years or even decades before SORNA’s enactment and quite obviously are no longer juveniles. Indeed, the brunt of SORNA’s retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers — many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNA’s enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. Although from this point forward no new individuals will be affected by the retroactivity provision, its effects will be felt by numerous individuals for the rest of their adult lives.qualifying offenses before its enactment, including juvenile delinquents. 28 C.F.R. § 72.3 (2007).
We must decide as a matter of first impression — in our court and in any other circuit court — whether the retroactive application of SORNA’s provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA’s passage violates the Ex Post Facto Clause of the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional."
This is a good panel for Judge Reinhardt, and Judges Tashima and McKeown fully join his opinion. Similarly, in light of the composition of the Ninth Circuit, I don't think that this one's going to get taken en banc. Though I think there might well be a call for it, and such a call would surely get some votes, I think it'd fail.
But I'm not sure I can say that same about the prospects for this one in the Supreme Court. Rightly or wrongly (depending on your view), the principles so ably espoused by Judge Reinhardt are far from universally shared by the Justices. Yes, there's no circuit split, as the Ninth Circuit is the first one to have rendered an opinion on this issue. Yes, there's no directly contrary Supreme Court precedent, so arguably you would want this issue to percolate in the lower courts first.
But let's be honest. It's a Judge Reinhardt opinion, and if only for that reason alone, there are plenty of people on the Court -- and in their chambers -- who'll be just itching to reverse him. Again. Especially when, as here, the opinion powerfully articulates a particular vision of the law that's far from shared in certain quarters. Any Ninth Circuit "liberal" opinion is on shaky ground. Those that (as here) invalidate portions of a federal statute on constitutional grounds are even more vulnerable.
So here's what I'd do if I were the U.S. Attorney in Montana. I'd ask for rehearing en banc. Not because I'd expect to win. But rather because I'd want (and expect) a fire-eating dissent from the resulting denial. Which I'd then have available as a basis around which to write a petition for certiorari. Which assumes, of course, that the SG's office (which is in charge of certiorari petitions) would want to file. But I think even under the Obama administration, the SG's office would indeed do so. And the likelihood of the petition getting granted, I believe, is fairly high.
I make no normative judgments here. I'm purely being descriptive. With the sole normative caveat -- again -- that you should read this one while you can. 'Cause I don't think this is the end of the matter. And I'm not sure it'll be good law in a couple of years.