VII. Due Process Concerns
At times, the juvenile or adult court proceedings that result in convictions for sexual offenses are marred by due process failings, prompting additional questions about the fairness of subjecting youth sex offenders to registration.
Guilty Pleas
Children accused of any type of offense (not only sexual offenses) are particularly vulnerable during criminal proceedings. Children and adolescents are less mature than adults and have less life experience on which to draw, and this makes understanding the court process, the charges, and the consequences of a plea more difficult.[324] Like individuals with mental impairment, children may also be more compliant, especially when pressured by adult authority figures.[325] There is also evidence that children are more vulnerable to police pressure during interrogations.[326] Their deference to authority and lack of sophistication can result in both false confessions and agreements to plead guilty to crimes that they may not have committed.[327] The decision to confess or to plead guilty is particularly momentous in the case of sexual assault crimes, since convictions often trigger onerous registration requirements.
|
Ethan A. Ethan A. was 11 years old, growing up in Amarillo, Texas, when his life changed forever. His mother, Eva, told Human Rights Watch that Ethan was “the fixer-upper type who loved taking things apart and seeing how they worked—the toaster, the television, the radio.”[328] Bel said that Ethan was often picked on by the kids in the neighborhood for being the “good kid.”[329]
A photograph of Ethan A. (pseudonym) held by his mother, showing her son at age 11, 4 months before he was arrested for committing a sex offense and placed on the sex offender registry in Texas. © 2013 Private Ethan’s parents divorced when he was very young. At the age of 10, Ethan and his younger brother went to live with their father and stepmother in Amarillo. In 1998, when Ethan was 11, his step-mother accused Ethan of molesting his 3-month-old sister and of touching the genitals of his younger brother. Ethan recalls being terrified and “shaking with fear” at the police station.[330] Ethan denies touching his stepsister and brother, but his stepmother maintained her accusations. He wrote to Human Rights Watch that when he was 11, he “did not think he was allowed to disagree with the police officer.”[331] Ethan entered a plea to aggravated sexual assault of a child and indecency with a child by contact. He was sentenced to serve six years and four months in Texas juvenile detention. After three years, Ethan was released on juvenile probation to the custody of his mother and required to register as a sex offender. He had his first photograph taken for the registry in 2001, at the age of 13. Ethan’s mother said “the rest of his life was drastically altered.”[332] While Ethan was in juvenile detention, he fell behind his peers in school and had to attend an alternative school upon release. Being on the registry permeated most aspects of Ethan’s life and affected his family; he was not allowed to be around his siblings and other young relatives until they turned 18, he was repeatedly stopped by police because they knew he was on the registry, and he was harassed and threatened by neighbors. Because the registry lists the perpetrator’s current age but the victim’s age at the time of the offense, as Ethan grew older the registry gave the impression of an increasingly wide age divide between him and his victims. As a teenager, Ethan was anxious to get a job so he could help his mother pay the bills. Even though Ethan was not a convicted felon, employers refused to hire him when he disclosed that he was on the sex offender registry. Finally things started to look up for Ethan. In 2009, at age 22, he had a girlfriend and got a job working in an auto body shop. Ethan told us that when people in his community learned of his registration status, however, some “told the manger to fire him,” and the manager did so.[333] A few months after getting fired, in August 2009, Ethan went for his yearly registration verification and was arrested on the spot for failing to report that he had been fired from his job. He sat for one year in jail awaiting trial. On August 5, 2010, he was found guilty of failure to register and sentenced to three years in prison. In Texas and most states, registered sex offenders may be prosecuted if they fail to register, fail to verify registration information, or fail to provide notice of change of address or place of employment. Ethan was immediately arrested, convicted, and sentenced to three years in prison for this felony offense.[334] While in prison, Ethan has persevered. He obtained his GED in December 2012 and is due to be released in June 2013. Upon release, Ethan will be placed on the highest level of adult parole for 10 years and required to resume his sex offender registration until 2020. |
In several cases investigated by Human Rights Watch, children (often with little legal advice) agreed to plead guilty to a sex offense without being informed of the registration requirements they would be subject to for years or decades thereafter. For example, in 1999, Mason T. was adjudicated delinquent for aggravated sexual assault for inappropriately touching a 7-year-old girl when he was 12. After completing two years of therapy and probation, at the age of 14, Mason was informed that he had to register as a sex offender for 10 years. This news shocked both Mason and his mother. The family was not told before entering the plea that Mason would be required to register as a sex offender. They were never informed that anyone could access the state’s online sex offender registry and see details of Mason’s offense, his photograph, and their family home address.[335]
It is common practice in the US criminal justice system for attorneys and judges to sometimes use the threat of trial and long sentences to obtain a plea. Elijah B., a youth offender interviewed by Human Rights Watch, said, “I stood in court at the age of 17 and the judge told me: ‘if you enter a plea of not guilty you will serve at least 15 years in prison. If you say guilty you can go home on probation.’”[336] Another youth offender said, “The attorney told me that if I didn’t admit to the charge I would be charged as an adult and get 20 years to life in prison.”[337] A mother of a youth offender told Human Rights Watch,
His attorney advised us to just plead guilty to the charges. He told us that by entering a plea [Justin] would just get some counseling and we could save everyone from the embarrassment of a trial. I agreed. It turned out that [Justin] would be required to register as a sex offender for 10 years starting on the last day of his probation. He was 13 when he started registering.[338]
The vast majority of youth sex offenders interviewed for this report pled guilty (280 people, or 94.6 percent). In only 39.2 percent of the 296 cases examined for this report did youth offenders describe being informed of registration requirements before entering their plea.
Retroactive Application of Registration Requirements
The federal Sex Offender Registration and Notification Act (SORNA) expanded the number of youth sex offenders subject to registration by adding more nonviolent, lower-risk offenders to the federal registry. SORNA also opened the door to the retroactive application of registration requirements to individuals convicted of sex offenses (whether in juvenile or criminal court proceedings) before the registration laws went into effect.
Of the youth sex offenders interviewed for this report, 57 (19 percent) were subject to registration requirements imposed retroactively after their convictions. Some of these individuals had completed the terms of their parole and juvenile or adult probation, started families, and made lives for themselves. Due to the changes wrought by SORNA, others who had shown no risk of reoffending were now considered high-risk offenders because of a crime that occurred decades ago. Some pled guilty to crimes and lived for a time without being subject to registration, only to learn much later that they had agreed to terms which now trigger harsh consequences. While records of juvenile delinquency are normally kept confidential, the retroactive application of SORNA requires individuals who previously pled to acts of juvenile delinquency— and who did so with the expectation that their adjudication would remain confidential— to publicly expose that information to friends, family, colleagues, and neighbors. Some, had they known that they would years later be subject to registration requirements, might not have pled to the charges at all.
As of 2012, all but one appellate district in the United States allowed for the retroactive application of registration requirements to past convictions or adjudications. The one exception is the Ninth Circuit Court of Appeals. In the case of U.S. v. Juvenile Male, the court found that the retroactive application of SORNA to juvenile adjudications was unconstitutional.[339] In 2010, the US Supreme Court reviewed the case but did not address the constitutionality of the retroactive application of SORNA.[340]
Fewer Protections in the Juvenile System?
Juveniles adjudicated delinquent of sexual offenses are less protected from accepting a plea without being informed of registration requirements than children subject to the jurisdiction of adult courts. Many courts have found that a defendant charged as an adult must know the collateral consequences of entering a plea to a criminal offense, such as registration, community notification, and residency requirements.[341] Conversely, the law is less settled as to whether children must be informed of the collateral consequences that result from entering a plea to a juvenile offense.[342] For example, a 2011 study of registration requirements in Delaware, Florida, North Carolina, and Virginia emphasized,
None of the four states studied requires administrators of the juvenile justice system to notify juvenile offenders or their guardians of the collateral consequences of juvenile records or of the opportunity to expunge those records. In each of the states, a youth could have many interactions with the administrators of the juvenile courts, including his attorney, and not learn the potential ramifications of juvenile delinquency adjudications of sexual offenses – i.e. registration.[343]
[324] Amanda C. Ferguson, Megan M. Jimenez, and Rebecca L. Jackson, “Juvenile False Confessions and Competency to Stand Trial: Implications for Policy Reformation and Research,” The New School Psychology Bulletin, vol. 7, no.1 (2010).
[325] Ibid.
[326] Ibid.
[327] Ibid.
[328] Human Rights Watch interview with Eva K., mother of Ethan A., Brownwood, Texas, October 5, 2012.
[329] Ibid.
[330] Human Rights Watch correspondence with Ethan A., October 5, 2012.
[331] Ibid.
[332] Human Rights Watch interview with Eva K., October 5, 2012.
[333] Human Rights Watch correspondence with Ethan A., October 5, 2012.
[334] Texas Code of Criminal Procedure Article 62.102 - Failure To Comply With Registration Requirements.
[335] Renee C. Lee, “Juveniles wait years to get past sex crimes,” Houston Chronicle, September 21, 2009, http://www.chron.com/news/houston-texas/article/Juveniles-wait-years-to-get-past-sex-crimes-1601637.php (accessed March 21, 2013).
[336] Human Rights Watch interview with Elijah B., Houston, Texas, April 28, 2012.
[337] Human Rights Watch interview with Mason T., Pinehurst, Texas, May 2, 2012.
[338] Human Rights Watch interview with mother of Justin Z., Fort Worth, Texas, April 27, 2012.
[339] 581 F.3d 977 (9th Cir. 2009), vacated and remanded, 131 S. Ct. 2860 (2011), appeal dismissed as moot, 653 F.3d 1081 (9th Cir. 2011).
[340]USA v. Juvenile Male, 131 S. Ct. 2860 (2011).
[341]Padilla v. Commonwealth of Kentucky, 559 U.S. 356 (2010) (requiring defense attorneys to inform clients of the collateral consequences in immigration law of a criminal conviction). See also Taylor v. State, 698 S.E.2d 384, 388 (Ga. Ct. App. 2010) (applying Padilla to sex offender registration). But see Maxwell v. Larkins, No. 4:08 CV 1896 DDN, 2010 WL 2680333, at 10 (E.D. Mo. July 1, 2010) (declining to extend Padilla to sex offender registration).
[342] See, for example, Interest of L.T., 2011 ND 120, PP 20-22, 798 N.W.2d 657, 663 (declining to require the court to advise the child or respondent-parent of the requirement to register as a sexual offender before accepting an admission of guilt to an offense requiring the juvenile to register).
[343] University of North Carolina Center for Civil Rights, “Juvenile Delinquency Adjudication, Collateral Consequences, and Expungement of Juvenile Records: A Survey of law and Policy in Delaware, Virginia, North Carolina, and Florida,” 2011, http://www.law.unc.edu/documents/civilrights/centerforcivilrightsexpungementreport.pdf (accessed March 21, 2013).
