The New Unconstitutionality of Juvenile Sex Offender Registration: Suspending the Presumption of Constitutionality for Laws that Burden Juvenile Offenders

Spencer Klein*

In Smith v. Doe, the Supreme Court held that Alaska’s sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed the issue. This Note argues that the Court should suspend the presumption of constitutionality when conducting its ex post facto inquiry for laws that burden juvenile offenders. The Court should do so because the very rationales that underlie the presumption are inapplicable in both the case of juvenile offenders and the ex post facto context. In lieu of rational basis review, this Note proposes a new framework under which the Court may evaluate laws that burden juvenile offenders. Under this new framework, a law is automatically punitive when it activates one or more of three triggers. These triggers are activated when a sanction is (1) irrevocable for life, (2) substantially likely to cause severe psychological trauma, or (3) grossly disproportionate to the culpability of the offender.

*J.D. Candidate, May 2017, University of Michigan Law School. I would like to thank the Notes Office for all their useful edits and comments. I am also grateful to Professor J.J. Prescott for his insight and support, to Claire Lally and Stephen Houck, for their help in the early stages of the development of this Note, and to my family, for their help in the early stages of the development of this author.

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