In the Interest of T.H., Minor Child

• Court: Supreme Court of Iowa
• Decided: June 15, 2018
• Docket: 16-0158
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 16–0158

Filed June 15, 2018

IN THE INTEREST OF T.H., Minor Child.

T.H., Minor Child,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Brian L.

Michaelson, Senior Judge.

A juvenile statutorily required to register as a sex offender

challenges the provision as cruel and unusual punishment under the

Iowa and United States Constitutions. DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane,

Sioux City, and Kathryn C. Stevens, Public Defender, Sioux City (until

withdrawal) for appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant

Attorney General, and Diane Murphy, Assistant County Attorney, for

appellee. 2

CADY, Chief Justice.

In this appeal, we must decide if substantial evidence was

presented to establish that a juvenile committed a sex offense by force

and whether the mandatory sex offender registry statute for certain

juvenile sex offenders violates the prohibition against cruel and unusual

punishment under either the Iowa or United States Constitution. The

juvenile court found the juvenile committed a sex offense by force and

ordered him to register as a sex offender. We transferred the appeal to

the court of appeals. It found substantial evidence that the juvenile

committed a sex offense by force and that the sex offender registry

requirements imposed by law did not violate the prohibition against cruel

and unusual punishment under either the Iowa or United States

Constitution. On our further review from the court of appeals decision,

we affirm the decision of the juvenile court and the decision of the court

of appeals.

I. Factual Background and Proceedings.

On or about July 15, 2015, T.H., a fourteen-year-old boy, knocked

on the door of I.N., a sixteen-year-old girl whom T.H. had known for a few

years. I.N. answered the door, and T.H. told her he had a gift for her. He

told I.N. he had ordered a ring and wanted to give it to her. I.N. asked

her mother if she could talk with T.H. on the front porch, and her mother

gave her permission. Once the two were outside, they talked for a few

minutes, and T.H. began to kiss I.N., over her objections. T.H. then sat

on the porch and asked I.N. to join him. She initially refused, but T.H.

continued to insist.

I.N. sat down on the porch next to T.H., who then exposed his

penis and shoved the back of I.N.’s head downward toward it. I.N.

protested repeatedly, and as she said “no,” T.H.’s penis entered her 3

mouth. T.H. kept his hand on I.N.’s head so she could not raise her

head. I.N. then bit T.H.’s penis in order to free herself, prompting T.H. to

release her head. T.H. asked her why she had bit him, and I.N.

responded that she did not want to do this and had said no. I.N. slapped

T.H. in the face, and T.H. went home.

I.N. ran inside and told her mother what had happened. I.N.’s

mother called the police. I.N. was interviewed by the police and a few

days later interviewed by the Child Advocacy Center. The police also

interviewed T.H. Although T.H. initially denied the incident, after an

officer falsely represented to him that there was surveillance footage of

the encounter, T.H. admitted to forcing I.N. to perform oral sex and that

she bit him in the process. After the police interview, without an officer

in the room, T.H. wrote an apology letter to I.N. He wrote,

Dear [I.N.], I sorry for forcing you to suck my penis. I’m so sorry. If you forgive me, I’ll be happy. So just remember I still care about you. Love, [T.H.]

Since the incident, I.N. has experienced recurring nightmares about the

incident and is wary around boys who resemble T.H. She also has had

difficulty participating in school when the topic of sexual abuse is

discussed.

On July 21, 2015, the State filed a delinquency petition alleging

the delinquency of T.H. based on a number of incidents. The State

alleged T.H. committed sexual abuse in the third degree by performing a

sex act by force or against the will of I.N. in violation of Iowa Code section

709.4(1)(a) (2016). Based on domestic incidents that occurred in late

June 2015, the State also alleged two counts of simple assault for

punching and choking his mother, one count of simple assault for 4

punching his brother, and one count of criminal mischief in the fifth

degree for throwing a mop through a window of his residence.

The juvenile court held an adjudicatory hearing during which I.N.

testified about the incident, as well as the detective who conducted the

investigation. Following the witnesses’ testimonies, the juvenile court

dismissed the four counts relating to the domestic incidents. On

December 11, the juvenile court adjudicated T.H. delinquent for

performing a sex act by force and against the will of I.N. in violation of

Iowa Code section 709.4(1)(a). The court, therefore, found that T.H. had

committed sexual abuse in the third degree and that his offense was

committed with force.

The court soon thereafter issued its dispositional order, which

discussed T.H.’s mental health history, past behavioral problems, and

prior rehabilitation efforts by the State. T.H.’s father has never played a

role in his life, and his mother has been married three times. Her second

husband was an alcoholic, and her third husband abused her,

sometimes in T.H.’s presence. After the third husband left the home,

T.H. kept in contact with him, as he provided drugs to T.H. and his

friends. Currently, the man who is living in T.H.’s home is a multistate

offender with prior arrests for narcotics possession, domestic violence,

and child endangerment. T.H.’s mother has a history of substance

abuse, although she has been sober for over seven years. She currently

works the overnight shift at Wal-Mart. From 2004 to 2008, T.H. lived

with his maternal grandmother and stepgrandfather in Texas, and they

have since continued to request custody of T.H.

Prior to the incident with I.N., T.H. had received a number of

services to address his mental health and behavioral needs. In August

2011, T.H. was removed from his home by the police and taken to 5

St. Luke’s Hospital for aggressive behavior. In September 2011, he was

placed in the Four Oaks PMIC Program and resided in the facility for

seven months. In December 2012, T.H. was committed to the Cherokee

Mental Health Institute (MHI) after threatening to stab kids at school

with a paper knife, drawing pictures of shooting people and blowing up

houses, and stating that voices in his head were telling him to do bad

things. He remained at Cherokee MHI until February 2013, when he

received a placement at the Boys and Girls Home in Sioux City. Through

each of the out-of-home placements, T.H. was given services relating to

anger management, coping mechanisms, age-appropriate social skills,

communication skills, and self-esteem. T.H. was returned to his

parental home in August 2013 with a good prognosis.

Beginning in January 2014, the Sioux City police were frequently

called to assist with family disturbances in his home. T.H.’s mother

struggled to contain T.H.’s behavior and sought assistance from juvenile

officers and a therapist. In September 2014, after T.H. broke a window

in the family home, he was placed on an Informal Adjustment and

assigned twenty hours of community service. T.H.’s mother also pursued

outpatient mental health services and medication for T.H. School liaison

services were also added to support him at school. In June of 2015,

police were twice called to address incidents within his home after T.H.

punched his brother and mother and placed his mother in a choke hold

during an argument. Juvenile officers discussed the possibility of a

second Informal Adjustment, but opted to give T.H. one month to

demonstrate his ability to live in the home without aggression. Less than

a month later, T.H. was brought to detention for sexually abusing I.N.

After being placed in detention, T.H. completed two psychological

evaluations. T.H. was diagnosed with a schizoaffective disorder, bipolar 6

type; an attention deficit/hyperactivity disorder, combined presentation;

an oppositional defiant disorder, moderate; and an unspecified anxiety

disorder. T.H. expressed a desire not to be returned to his parental

home, stating he was afraid he would hurt his mother, brother, or do

something sexual again.

Considering the above circumstances and T.H.’s history of prior

services, the court concluded that it was in T.H.’s best interests to be

placed in a residential treatment facility. The court ordered T.H. to be

placed in the S.T.O.P. program at the Four Oaks facility where he would

receive a number of services. The court also found that T.H.’s offense is

a tier III sexual offense, and therefore, T.H. was required to register as a

sex offender pursuant to Iowa Code section 692A.102(1)(c)(10). The court

explained it had no discretion to defer or waive the sex offender

registration requirements, as T.H. was fourteen years old and committed

his offense with force. Accordingly, the court ordered T.H. to register as

a sex offender pursuant to Iowa Code section 692A.103(4).

T.H. appealed and raised two issues. First, he asserted there was

insufficient evidence to find he committed sexual abuse by force.

Second, he argued the mandatory sex offender registration constituted

cruel and unusual punishment in violation of both the Iowa and

United States Constitutions. We transferred the case to the court of

appeals. It concluded there was substantial evidence to support a

finding that T.H. sexually abused I.N. by force. It also found that

mandatory sex offender registration for juveniles was not cruel and

unusual punishment.

We granted T.H.’s application for further review. 7

II. Standard of Review.

Juvenile delinquency proceedings are “special proceedings that

provide an alternative to the criminal prosecution of children where the

best interest of the child is the objective.” In re M.L., 868 N.W.2d 456,

460 (Iowa Ct. App. 2015). We consider the sufficiency of the evidence in

juvenile delinquency adjudications de novo. In re D.S., 856 N.W.2d 348,

351 (Iowa 2014). We review constitutional challenges de novo. State v.

Roby, 897 N.W.2d 127, 137 (Iowa 2017).

III. Analysis.

A. Sufficiency of Evidence. A person commits sexual abuse in

the third degree when the person performs a sex act under various

circumstances, including when “[t]he act is done by force or against the

will of the other person.” Iowa Code § 709.4(1)(a). T.H. alleges the State

introduced insufficient evidence that he committed a sex act “by force or

against the will” of I.N.

The essence of the claim asserted by T.H. is built upon two

propositions. First, he used the nature of their relationship to support

the absence of any evidence of force. T.H. asserted he had been

pursuing a relationship with I.N., they maintained a friendly relationship,

they had spent time together alone in the past, I.N. never felt threatened

or fearful during any past encounter, and he was invited by I.N. into her

home to be alone with her at the time in question. Second, he claimed

the testimony of I.N. about the event was both implausible and

inconsistent, claiming the sex act that occurred was voluntary.

Upon our review of the transcript, we find substantial evidence to

support the crime, including the element of force. I.N. testified T.H.

forced her head into his erect penis, and she responded by repeatedly

telling him “no.” T.H. acknowledged to police that he forced I.N.’s head 8

down into his penis and that he asked her why she did not want to

perform oral sex. Upon our de novo review, we also consider the findings

of the juvenile judge who heard the testimony and evaluated the

credibility of the witnesses. In re A.K., 825 N.W.2d 46, 49 (Iowa 2013).

B. Mandatory Juvenile Sex Offender Registration. T.H. next

argues that the mandatory sex offender registration requirement

constitutes cruel and unusual punishment because the governing

statute does not permit the juvenile court to waive the registration

requirement for juveniles like himself who were found delinquent of a sex

act under aggravated circumstances. He argues the constitutional

protections entitle all juveniles to an individualized assessment by the

juvenile court to determine if registration should be waived or imposed.

T.H. builds his argument on those cases requiring an individualized

hearing before sentencing juvenile offenders to imprisonment without

parole. See generally State v. Lyle, 854 N.W.2d 378 (Iowa 2014); State v.

Ragland, 836 N.W.2d 107 (Iowa 2013); State v. Pearson, 836 N.W.2d 88

(Iowa 2013); State v. Null, 836 N.W.2d 41 (Iowa 2013).

To address this argument, we must first determine the operation of

the sex offender registry statute with respect to juvenile offenders. This

task requires us to consider two statutory schemes: the sex offender

registry statute and the statute governing the adjudication and

disposition of juvenile offenders. Second, we will review the requirements

of the sex offender registry statute as applied to T.H.

1. Mandatory registration for certain juveniles. The Iowa Sex

Offender Registry statute broadly governs the registration of sex

offenders in Iowa. Under the statute, any person “convicted” of an

offense designated as a tier I, II, or III crime is required to register with

the Iowa Sex Offender Registry. Iowa Code § 692A.103(1). Generally, 9

this registration requirement applies to juvenile offenders. Juveniles

adjudicated delinquent of a qualifying offense are considered “convicted”

for registration purposes. Id. § 692A.101(7).

Notwithstanding, the registration statute permits the juvenile court

to “waive[] the registration” for juvenile offenders if it “finds that the

person should not be required to register.” Id. § 692A.103(3).

Additionally, if a juvenile court does not initially waive the registration

requirement, it may subsequently “modify or suspend the registration

requirements” upon a showing of good cause prior to the discharge of a

juvenile from the jurisdiction of the court. Id. § 692A.103(5).

Yet, the statute does not permit the juvenile court to waive the

registration requirements, or modify or suspend the requirements, for

juveniles fourteen years of age or older at the time of their sex offense

and who committed their offense “by force or the threat of serious

violence, by rendering the victim unconscious, or by involuntary

drugging of the victim.” Id. § 692A.103(4). If a juvenile commits a sex

offense under these circumstances, the juvenile must register as a sex

offender and may not petition the juvenile court to modify or suspend the

registration requirements prior to the discharge from the jurisdiction of

the court. Id. § 692A.103(5)(e). Accordingly, under the sex offender

registration statute, juveniles who are found delinquent of an aggravated

sex offense must register as sex offenders, and the requirement cannot

be waived under the statute by the juvenile court.

The provisions of the sex offender registration statute, however,

must be read in conjunction with the juvenile justice provisions of

chapter 232. In particular, the statute governing dispositional orders for

juvenile offenders directs the juvenile court to “determine whether [a]

child shall remain on the sex offender registry prior to termination of the 10

dispositional order.” Id. § 232.54(1)(i). Importantly, unlike the

provisions governing the waiver of the registration requirement for

juveniles, the authority of the juvenile court to determine if a juvenile

should remain on the registry after the dispositional order terminates

does not exclude juveniles who commit sex crimes under aggravated

circumstances. Thus, an aggravated sex offender must initially register

under the statute. However, any time a court acts to terminate a child’s

dispositional order that “require[d] [the] child to register as a sex offender

pursuant to chapter 692A, the juvenile court shall determine whether the

child shall remain on the sex offender registry prior to the termination of

the dispositional order.” 1 Id.

This approach is not only consistent with the language of chapter

692A and chapter 232, but it is also in line with the objective of the

juvenile law. Retaining the juvenile court’s jurisdiction is consistent with

the research that shows juvenile sex offenders can achieve rehabilitation

far easier than adult sex offenders. See Robert E. Shepherd Jr.,

Advocating for the Juvenile Sex Offender, Part 1, 21 Crim. Just. 53, 54

(2006) (“Adolescent sex offenders are far less predatory, are less likely to

engage in serious or aggressive behaviors, are far more amenable to successful treatment, are more readily treated and supervised within the

community, and have significantly lower recidivism rates.”); see also

Roper v. Simmons, 543 U.S. 551, 569–71, 125 S. Ct. 1183, 1195–96

(2005) (recognizing the “diminished culpability of juveniles” and their

1A dispositional order can automatically terminate by operation of law when a

juvenile reaches a certain age or it can terminate at the hand of the juvenile court prior to its expiration. See Iowa Code § 232.53 (governing duration of dispositional orders). The requirement for the juvenile court to determine if a child shall remain on the sex offender registry only applies when the court terminates a dispositional order requiring the child to register as a sex offender “prior to its expiration.” Id. § 232.54(1). Thus, if a dispositional order expires by operation of law, the juvenile offender remains on the sex offender registry. 11

greater capacity for rehabilitation); Lyle, 854 N.W.2d at 400 (noting a

juvenile’s “greater capacity for growth and reform”). Thus, the juvenile

court is able to relieve a juvenile sex offender from the registration

requirements when rehabilitation under a dispositional order is achieved

prior to expiration.

2. Sex offender registry requirements. Generally, when a juvenile

is required to register as a sex offender, the registration begins on the

date the juvenile delinquent is released from placement in a juvenile

facility; the date the juvenile delinquent begins attending a public or

private education institution as a student; or the date of conviction if

probation, incarceration, or placement in a juvenile facility was not

ordered as a disposition. See Iowa Code § 692A.103(1). Once

registration occurs, numerous restrictions and requirements are

imposed. Thus, we turn to consider the impact of the registration

requirements on T.H.

T.H. was fourteen years old at the time of his offense. In its

delinquency adjudication, the juvenile court specifically found that T.H.

committed the offense with force, as he used his hand to shove I.N.’s

head toward his penis. Therefore, the juvenile court indeed lacked

discretion to waive or defer his requirement to register as a sex offender,

and it may not subsequently act to modify or terminate his registration

requirement during the period of his dispositional order. For at least the

duration of his dispositional order, T.H. must abide by the following

terms of the sex offender registry.

T.H. must appear in person to register with the sheriff of each

county where he resides, works, or attends school. Id. § 692A.104(1). If

T.H. changes his residence, employment, or school he must notify the

county sheriff within five business days. Id. § 692A.104(2). If T.H. 12

moves to, works in, or attends school in a new jurisdiction, he must

notify the sheriff in the county of his principal residence of his presence

in the new jurisdiction. Id. § 692A.104(5). If T.H. plans to leave the

county for more than five days, he must notify the sheriff of his

intentions and provide the location and period of time that he will be

staying out of the county. Id. § 692A.105. Every three months, T.H.

must appear in person to verify the location of his residence,

employment, and school. Id. § 692A.108(1)(c). He will also pay an

annual registration fee of twenty-five dollars. Id. § 692A.110(1).

Because T.H. committed an offense against a minor, he is subject

to a number of exclusion zones and employment restrictions. He may

not be present upon, nor loiter within 300 feet of, the property of an

elementary or secondary school, except for the school he attends. Id.

§ 692A.113(1)(a)–(b). He similarly may not be present upon, nor loiter

within 300 feet of, the property of a public library, absent prior written

permission by the library administrator. Id. § 692A.113(1)(f)–(g). T.H.

also may not be present upon, nor loiter within 300 feet of, the property

of a child care facility, absent prior written permission by the facility. Id.

§ 692A.113(1)(d)–(e). T.H. may not loiter on the premises of any facility

for dependent adults, nor may he be present at an event that provides

services or programming for dependent adults. Id. § 692A.115(1).

Finally, T.H. may not be present upon nor loiter within 300 feet of

any place intended primarily for the use of minors including but not limited to a playground available to the public, a children’s play area available to the public, a recreational or sport-related activity area when in use by a minor, a swimming or wading pool available to the public when in use by a minor, or a beach available to the public when in use by a minor.

Id. § 692A.113(1)(h). 13

Throughout the duration of his registration, T.H. may not work or

volunteer for a “municipal, county, or state fair or carnival when a minor

is present on the premises.” Id. § 692A.113(3)(a). He also may not work

or volunteer at a “children’s arcade, an amusement center having coin or

token operated devices for entertainment, or facilities providing programs

or services intended primarily for minors, when a minor is present.” Id.

§ 692A.113(3)(b). T.H. similarly may not work or volunteer at a “public

or nonpublic elementary or secondary school, child care facility, or public

library.” Id. § 692A.113(3)(c). He is also prevented from working or

volunteering at “any place intended primarily for use by minors including

but not limited to a playground, a children’s play area, recreational or

sport-related activity area, a swimming or wading pool, or a beach.” Id.

§ 692A.113(3)(d). He may not work or volunteer for any business that

“operates a motor vehicle primarily marketing, from or near the motor

vehicle, the sale and dispensing of ice cream or other food products to

minors.” Id. § 692A.113(3)(e). As well, T.H. may not be employed by a

“facility providing services for dependent adults or at events where

dependent adults participate in programming.” Id. § 692A.115(1).

Because T.H. is a minor, he is not subject to any residency

restrictions. Id. § 692A.114(3)(e). However, if T.H. is still required to

register after becoming an adult, he will not be permitted to reside within

2000 feet of a school or child care facility. Id. § 692A.114(2). As well,

should the juvenile court see fit, T.H. may be supervised by an electronic

tracking and monitoring system. Id. § 692A.124(3).

T.H.’s registration information will be publicized on the sex

offender registry website, which is searchable by “name, county, city,

zip code, and geographic radius.” Id. § 692A.121(1). The website will

also publish T.H.’s full name, photographs, date of birth, home address, 14

and physical description, including scars, marks, or tattoos. Id.

§ 692A.121(2)(b)(1)(a)–(e). The website provides the statutory citation and

text of his offense, as well as informs the public whether T.H. is subject

to residence restrictions, employment restrictions, and exclusion zones.

Id. § 692A.121(2)(b)(1)(f)–(h).

Members of the general public may also contact the county

sheriff’s office and request additional information about T.H. A member

of the public that contacts the sheriff and provides T.H.’s date of birth,

which is publicized on the sex offender registry website, may request a

list of schools T.H. has attended, the names and addresses of his current

and former employers, locations and dates of any temporary lodging, and

his vehicle information. Id. § 692A.121 (5)(a)–(b).

If T.H. violates any of the above requirements, he commits an

aggravated misdemeanor. Id. § 692A.111(1). Any subsequent violation is

a class “D” felony. Id. Additionally, if T.H. violates a registration

requirement, he must “register for an additional ten years, commencing

from the date [his] registration would have expired.” Id. § 692A.106(4).

T.H.’s registration term will be tolled until he resumes compliance with

the statutory requirements. Id. § 692A.107(2).

T.H. is required to register for at least the duration of his

dispositional order. Id. § 232.54(1)(i). If the juvenile court determines

that T.H. should remain on the registry beyond the duration of his

dispositional order, T.H. will register for a minimum of ten years from the

date of his initial registration. Id. § 692A.106(1). However, T.H. may

petition for modification after five years if he satisfies a number of

conditions. Id. § 692A.128(2). T.H. must complete all ordered sex

offender treatment programs, submit to a risk assessment and be

deemed a low risk to reoffend, not be incarcerated, and obtain a 15

stipulation to the modification from the director of the judicial district

department of correctional services. Id. However, if T.H. is no longer

under the juvenile court or department of correctional services’

supervision at the time he requests modification, he need not produce

the stipulation. Id. 692A.128(6). Accordingly, if T.H. abides by all of the

registration requirements, completes all of the ordered treatment

programs, and progresses to the point that he may be deemed a low risk

to reoffend, he may be released from the obligation to register as a sex

offender after five years.

C. Cruel and Unusual Punishment. T.H. alleges that mandatory

sex offender registration, as applied to juveniles, is grossly

disproportionate and, therefore, constitutes cruel and unusual

punishment in violation of the Iowa and United States Constitutions.

See U.S. Const. amend. VIII; Iowa Const. art. I, § 17. While we have

previously heard similar challenges to the Iowa Sex Offender Registry

scheme, we have not considered the issue in the context of juveniles, nor

have we meaningfully considered a cruel and unusual punishment

challenge in light of the significant legislative overhaul of the statutory

scheme in 2009. Thus, while our prior sex offender cases are relevant

considerations, they are not dispositive.

1. Sex offender registry as punishment. Before we can assess

whether mandatory sex offender registration for certain juveniles is cruel

and unusual, we must first determine that registration is, in fact,

punishment. See State v. Crooks, 911 N.W.2d 153, 165 (Iowa 2018)

(disposing of a constitutional challenge to Iowa’s waiver provision for

youthful offenders by concluding the statute was not punitive); see also

Doe v. Miller, 405 F.3d 700, 723 n.6 (8th Cir. 2005) (“In view of our

conclusion that the statute is not punitive, it follows that the law is not a 16

‘cruel and unusual punishment’ in violation of the Eighth Amendment.”);

Rainer v. State, 690 S.E.2d 827, 828 (Ga. 2010) (finding sex offender

registration did not constitute cruel and unusual punishment because

registration is regulatory, rather than punitive, in nature).

To determine whether mandatory sex offender registration for

certain juveniles is punishment, we find cases considering the issue in

the context of ex post facto challenges instructive. In State v. Seering, we

considered whether the 2000-foot residency restriction for certain

offenders was sufficiently punitive to violate the ex post facto prohibition.

701 N.W.2d 655, 667 (Iowa 2005). To ascertain whether the provision

was sufficiently punitive, we first considered whether the legislature

intended the statute to be punitive, rather than civil, in nature. Id. “If

the law was intended to be civil and nonpunitive, then we look to see if it

is nevertheless ‘so punitive either in purpose or effect as to negate’ the

nonpunitive intent.” Id. (quoting Smith v. Doe, 538 U.S. 84, 92, 123

S. Ct. 1140, 1147 (2003)).

Accordingly, we first consider whether, in mandating registration

for juveniles over the age of fourteen who commit their crimes “by force

or the threat of serious violence, by rendering the victim unconscious, or

by involuntary drugging of the victim,” the legislature intended to impose

criminal punishment. Iowa Code § 692A.103(4). We have previously

determined the legislative intent behind enacting chapter 692A was “to

protect the health and safety of individuals, especially children, not to

impose punishment.” Seering, 701 N.W.2d at 667; see also In re S.M.M.,

558 N.W.2d 405, 408 (Iowa 1997) (“The purpose of chapter 692A is clear:

to require registration of sex offenders and thereby protect society from

those who because of probation, parole, or other release are given access

to members of the public.”). 17

Prior to 2009, the statute granted juvenile courts discretion with

respect to all juveniles adjudicated delinquent of a qualifying offense.

See Iowa Code § 692A.2(6) (2007) (“A person who is convicted . . . of [a

qualifying offense] as a result of adjudication of delinquency in juvenile

court shall be required to register as required in this chapter unless the

juvenile court finds that the person should not be required to register

under this chapter.”). In 2009, the legislature amended chapter 692A

and revoked that discretion with respect to juveniles like T.H., who were

at least fourteen years old at the time of their offense and who committed

their offense through certain aggravated means. 2009 Iowa Acts ch. 119,

§ 3 (codified at Iowa Code § 692A.103 (Supp. 2009)).

The legislature amended the chapter in an effort to more closely

comply with the Federal Sex Offender Registration and Notification Act

(SORNA), Title I of the Adam Walsh Child Protection and Safety Act of

2006. Maxwell v. Iowa Dep’t of Pub. Safety, 903 N.W.2d 179, 185 n.4

(Iowa 2017); see generally 2009 Iowa Acts ch. 119 (amending Iowa Code

ch. 692A). SORNA requires juveniles to abide by the registry

requirements, including possible lifetime registration, if the juvenile was

“14 years of age or older at the time of the offense and the offense

adjudicated was comparable to or more severe than aggravated sexual

abuse.” 34 U.S.C. § 20911(8) (Westlaw through Pub. L. No. 115-173).

But see id. § 20927(b)(1) (providing a state may avoid a noncompliance

penalty if implementing certain SORNA provisions “would place the

jurisdiction in violation of its constitution, as determined by a ruling of

the jurisdiction’s highest court”). SORNA was promulgated “[i]n order to

protect the public from sex offenders and offenders against children.” Id.

§ 20901. Thus, although the provisions have been amended since our 18

decisions in Seering and S.M.M., we believe the legislative intent behind

our current sex offender statute remains protective and nonpunitive.

Nevertheless, we also consider whether the effects and impact of

chapter 692A on juveniles is sufficiently punitive to render the scheme

penal in nature. In this inquiry, we are guided by the Mendoza-Martinez

factors, which consider whether (1) “the sanction involves an affirmative

disability or restraint,” (2) “it has historically been regarded as a

punishment,” (3) “it comes into play only on a finding of scienter,” (4) “its

operation will promote the traditional aims of punishment—retribution

and deterrence,” (5) “the behavior to which it applies is already a crime,”

(6) “an alternative purpose to which it may rationally be connected is

assignable for it,” and (7) “it appears excessive in relation to the

alternative purpose assigned.” Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168–69, 83 S. Ct. 554, 567–68 (1963).

a. Affirmative disability or restraint. Chapter 692A, as applied to

juveniles, plainly imposes an affirmative disability or restraint. As

discussed, juvenile registrants are hindered in meaningfully reintegrating

into their communities upon release from treatment facilities or out-of-

home placements. While juvenile registrants may continue to attend

public school and are not subject to the 2000-foot limitation, they

nevertheless may not be present upon, nor loiter within 300 feet of, “any

place intended primarily for the use of minors.” Iowa Code

§ 692A.113(1)(h) (2016).

This restriction could prevent juveniles from participating in

prosocial after-school activities, sports teams, and youth clubs that are

available to their peers, which in turn severely limits their opportunities

to develop communication and social skills with children their own age.

Further, juveniles may not visit or loiter near public libraries, other 19

elementary or secondary schools, and child care facilities. Id.

§ 692A.113(1)(a)–(g). Juveniles who hope to obtain after-school or part-

time employment are similarly limited in their options. See id.

§§ 692A.113(3)(a)–(e), .115. Thus, the statute in many respects isolates

juvenile registrants from their peers outside of school hours.

Beyond actual exclusion zones, juvenile registrants must appear,

in person, to register with the sheriff of the county in which they reside,

attend school, or work. Id. § 692A.104(1). Juveniles like T.H. who were

adjudicated of a tier III offense must appear in person every three months

to verify their residence, employment, and school. Id. § 692A.108(1)(c);

cf. Smith, 538 U.S. at 101–02, 123 S. Ct. at 1151–52 (finding Alaska’s sex

offender statute did not require in-person updates and, therefore, did not

impose an affirmative restraint). In fact, the statutory scheme, which

requires in-person check-ins, employment conditions, and the possibility

of electronic monitoring, is strikingly similar to supervised probation.

Despite the protective purpose of the registry’s requirements, the totality

of the obligations under the statute impose an affirmative restraint on

juvenile registrants. This factor therefore weighs in favor of finding the

statute punitive.

b. Historically regarded as punishment. We next consider whether

compliance with the sex offender registry, for juveniles, entails conduct

that is historically regarded as punitive. In Seering, we considered

whether the 2000-foot rule was sufficiently akin to banishment. 701

N.W.2d at 667. We found the rule “only restricts sex offenders from

residing in a particular area. Offenders are not banished from

communities and are free to engage in most community activities. The

statute is far removed from the traditional concept of banishment.” Id. at

667–68. 20

In Smith, the Supreme Court considered an ex post facto challenge

to Alaska’s sex offender scheme. The Court rejected the comparison of

Alaska’s statutory requirements to banishment and public shaming.

Smith, 538 U.S. at 98, 123 S. Ct. at 1150. The Court noted that colonial-

era practices that required offenders to “stand in public with signs

cataloguing their offense,” branded murders with an “M” or thieves with

a “T,” and outright banished offenders from their original community, all

involved “stag[ing] direct confrontation between the offender and the

public.” Id. at 97–98, 123 S. Ct. at 1150 (quoting Adam J. Hirsch, From

Pillory to Penitentiary: The Rise of Criminal Incarceration in Early

Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982) (first quote)). Indeed,

punishments “such as public shaming, humiliation, and banishment,

involved more than the dissemination of information. They either held

the person up before his fellow citizens for face-to-face shaming or

expelled him from the community.” Id. The stigma resulting from

Alaska’s sex offender laws, however,

results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.

Id. at 98–99, 123 S. Ct. at 1150. 21

While the dissemination of accurate information about a criminal

record is not historically punitive for adults, juveniles are traditionally

shielded from such publication. Under the juvenile court’s jurisdiction,

juveniles surrender certain procedural safeguards afforded to adults—

namely a trial by jury—in exchange for the benefits of a confidential,

rehabilitative system. Juvenile courts were built on the “idea [that] crime

and punishment [were] to be abandoned. The child was to be ‘treated’

and ‘rehabilitated’ and the procedures, from apprehension through

institutionalization, were to be ‘clinical’ rather than punitive.” In re

Gault, 387 U.S. 1, 15–16, 87 S. Ct. 1428, 1437 (1967). By sealing

records, juvenile courts prevent youths from enduring lasting stigma for

adolescent blunders.

In Iowa, juvenile courts generally exercise “exclusive original

jurisdiction in proceedings concerning a child who is alleged to have

committed a delinquent act unless otherwise provided by law.” Iowa

Code § 232.8(1)(a). Unless a juvenile committed “a delinquent act that

would be a forcible felony if committed by an adult,” juvenile court

records are, by default, “confidential and are not public records.” Id.

§ 232.147(2) (2017). Indeed, even if a juvenile is alleged to have

committed an act that would be a forcible felony if committed by an

adult, juvenile courts may still order that the juvenile’s court records be

kept confidential if “the child’s interest in making the records confidential

outweighs the public’s interest in the records remaining public records.”

Id. § 232.149A(1)(b).

However, under a limited set of circumstances, juveniles may be

prosecuted as adults and thus lose the confidentiality benefits of the

juvenile system. The juvenile court must find that (1) the child is at least

fourteen years old, (2) there is probable cause the child committed a 22

delinquent act, and (3) “there are not reasonable prospects for

rehabilitating the child if the juvenile court retains jurisdiction . . . and

that waiver . . . would be in the best interests of the child and the

community. Id. § 232.45(6)(a)–(c) (2016). Thus, under our dual system,

children are only removed from juvenile court jurisdiction and treated as

adults when they are deemed to be deserving of punishment, rather than

rehabilitative services.

In United States v. Juvenile Male, the United States Court of

Appeals for the Ninth Circuit similarly acknowledged this distinction

between juvenile confidentiality and adult publication. 590 F.3d 924,

937 (9th Cir. 2009), vacated on other grounds by 564 U.S 932, 937–39,

131 S. Ct. 2860, 2864–65 (2011). Whereas Smith noted that much of the

disseminated information was already made public by virtue of the

intentionally public criminal trial, the Ninth Circuit emphasized that

“public availability of information is not, however, a traditional part of the

rehabilitative juvenile justice system.” Id. Indeed, the court found

“[h]istorically, information from juvenile adjudications has been made

public only when a juvenile’s case is transferred to adult criminal court

for punitive purposes.” Id. Because the decision to transfer a juvenile’s

case to adult court is “based in part on a prediction that rehabilitation is

improbable,” and that “juvenile’s case merits punishment, rather than

rehabilitation,” publicizing a juvenile offender’s identity and offense “is

historically a central feature of a punitive rather than a rehabilitative

system of justice.” Id.

Other courts have concluded the registry’s requirements are

historically punitive. In In re Nick H., the Maryland Court of Special

Appeals found “requiring [the juvenile] to register has essentially the

same effect on his life as placing him on probation. It is well-settled in 23

this State that probation is a form of a criminal sanction.” 123 A.3d 229,

244 (Md. Ct. Spec. App. 2015) (quoting Doe v. Dep’t of Public Safety &

Corr. Servs., 62 A.2d 123, 139 (Md. 2013) (plurality opinion)). Further,

the court noted the “purpose of keeping [juvenile] records confidential is

to further the rehabilitation of young offenders by relieving them of the

enduring stigma of their misconduct.” Id. (alteration in original) (quoting

District of Columbia v. Cooper, 483 A.3d 317, 323 (D.C. 1984)); cf. In re

C.P., 967 N.E.2d 729, 735, 749 (Ohio 2012) (noting the sex offender

registry “changes the very nature of [a serious youth offender]

disposition, imposing an adult penalty immediately upon the

adjudication” and ultimately concluding the juvenile registration regime

is unconstitutional).

Beyond the mere availability of a juvenile’s records, the sex

offender statute orders the mass publication of an offender’s information

to the state sex offender website. The Supreme Court considered this

feature in Smith, but remained unmoved.

The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. The State’s Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety’s Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to 24 appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska’s citizenry.

538 U.S. at 99, 123 S. Ct. at 1150–51 (emphasis added).

However, the Smith reasoning is less persuasive in 2018 than it

was in 2003. In Commonwealth v. Perez, Judge Donohue of the

Pennsylvania Superior Court offered a thoughtful concurrence on the

viability of Smith’s reasoning in the modern, interconnected world.

The environment has changed significantly with the advancements in technology since the Supreme Court’s 2003 decision in Smith. As of the most recent report by the United States Census Bureau, approximately 75 percent of households in the United States have internet access. Yesterday’s face-to-face shaming punishment can now be accomplished online, and an individual’s presence in cyberspace is omnipresent. The public internet website utilized by the Pennsylvania State Police broadcasts worldwide, for an extended period of time, the personal identification information of individuals who have served their “sentences.” This exposes registrants to ostracism and harassment without any mechanism to prove rehabilitation—even through the clearest proof. In my opinion, the extended registration period and the worldwide dissemination of registrants’ information authorized by SORNA now outweighs the public safety interest of the government so as to disallow a finding that it is merely regulatory.

97 A.3d 747, 765–66 (Pa. Super. Ct. 2014) (Donohue, J., concurring) (footnote omitted). Similarly, the court in Nick H found “[p]ublishing

information about former juvenile sex offenders on a public website

hardly provides confidentiality, and instead creates the ‘enduring stigma

of their misconduct.’ ” 123 A.3d at 244 (quoting Cooper, 483 A.3d at

323).

We find that mass publication of a juvenile’s delinquency

adjudication weighs in favor of finding the statute punitive. Juveniles

are traditionally shielded from having their records publicized unless

they are deemed to be in need of punishment and beyond rehabilitation. 25

While a passive website is indeed different from colonial-era public

shaming designed to create face-to-face encounters with the public, we

disagree with the Smith Court’s characterization of the website being akin

to an archive of criminal records. Posting juveniles’ personal

information, including their full name, date of birth, annual

photographs, home address, and physical description—including scars,

marks, and tattoos—goes well beyond merely unsealing previously

confidential records. The juvenile is publically branded as deviant on a

website known to and accessible by the juvenile’s peers. While T.H.’s

period of registration may be less than an adult’s, a member of the public

need only take a screen shot of the website to preserve T.H.’s presence

forever—a possibility that is antithetical to the traditional treatment of

juveniles within our justice system.

c. Scienter requirement. The third factor, whether the regulations

are triggered upon a finding of scienter, was deemed to be “of little

weight” to the Supreme Court’s decision in Smith. 538 U.S. at 105, 123

S. Ct. at 1154. Indeed, we did not identify this factor as a relevant

consideration in Seering, 701 N.W.2d at 667.

Other courts, however, have considered this factor in the context of

sex offender registries. In Nick H., the Maryland statute instructed that

juveniles must register only if the court determined they posed a

significant risk of reoffending. 123 A.3d at 244–45. The court found a

“determination that the juvenile sex offender is at significant risk of re-

offending logically implies that the juvenile court must find a significant

risk of future criminal intent on the part of the juvenile offender.” Id. at

244. The statute imposed no such prerequisite finding on adult

offenders. Id. Accordingly, the court found the scienter factor to weigh

in favor of the statute being punitive. Id. at 245. 26

Under Iowa’s scheme, some juveniles are required to register

pursuant to the court’s discretion, and such a determination may require

weighing the juvenile’s intent to recommit. With respect to juveniles at

issue in this case, however, there is no finding of scienter that triggers

registration. Juveniles like T.H. must register, regardless of their risk of

reoffending. Thus, the lack of a scienter requirement weighs in favor,

albeit marginally, of finding the statute nonpunitive. See State v. Eighth

Judicial Dist. Ct. (Logan D.), 306 P.3d 369, 387–88 (Nev. 2013) (finding

juvenile registration was not premised on a scienter requirement and

agreeing with the Supreme Court that the factor is “of little weight” to the

analysis).

d. Promote traditional aims of punishment—retribution and

deterrence. In Smith, the Court found “any number of governmental

programs might deter crime without imposing punishment. Smith, 538

U.S. at 102, 123 S. Ct. at 1152. Indeed, “[t]o hold that the mere

presence of a deterrent purpose renders such sanctions ‘criminal’ . . .

would severely undermine the Government’s ability to engage in effective

regulation.” Id. (second alteration in original) (quoting Hudson v. United

States, 522 U.S. 93, 105, 118 S. Ct. 488, 496 (1997)). Further, the

Supreme Court found that Alaska’s decision to impose greater reporting

requirements on repeat and aggravated offenders was not retributive, but

rather “reasonably related to the danger of recidivism.” Id.

Justice Souter concurred in the Smith decision, but expressed

doubt that registration requirements purely served a protective purpose.

The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is 27 room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones.

Id. at 109, 123 S. Ct. at 1155–56 (Souter, J., concurring in judgment). He further suspected that retribution was in fact a goal of the Alaska

legislature, and other legislatures, when enacting sex offender statutes.

Widespread dissemination of offenders’ names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. While the Court accepts the State’s explanation that the Act simply makes public information available in a new way, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.

Id. (citations omitted).

In Seering, we explained, “The nature of some governmental

restrictions, especially those designed to protect the health and safety of

children, may necessarily have some effects related to the goals of

punishment.” 701 N.W.2d at 668. We concluded any deterrent or

retributive effects of the 2000-foot rule were “secondary and largely

‘consistent with the regulatory objective.’ ” Id. (quoting Smith, 538 U.S.

at 102, 123 S. Ct. at 1152 (majority opinion)).

In Logan D., the Nevada Supreme Court considered whether

juvenile registration promoted retribution by assigning more stringent

registration requirements based on the offense committed, rather than

the juvenile’s individual risk to reoffend. 306 P.3d at 385. According to

the juvenile, if heightened registration requirements were intended to

guard against recidivism, they would be associated with individualized 28

risk-assessments, rather than the prior offense. Id. The Nevada

Supreme Court rejected this characterization. Id. Like the Supreme

Court in Smith, the court found the “scheme of offense-based tiering is

consistent with the statute’s goal of protecting the public from recidivist

juveniles [and] it is reasonable to conclude that juvenile offenders who

have committed the most severe offenses pose the greatest risk to the

public.” Id. (footnote omitted).

We find this factor weighs in favor of finding the statute

nonpunitive. While the registry certainly produces deterrent and

retributive effects, requiring juvenile offenders to abide by exclusion

zones and employment restrictions directly promotes the civil objective of

alerting the public to the presence of a sexual offender. Although the

severity of the requirements may incidentally deter individuals from

committing an initial offense, that fact does not detract from the primary

purpose and effect of the statute, which is reducing the opportunities for

juveniles who have committed aggravated sexual offenses to reoffend.

e. Applies to behavior that is already criminal. Like the scienter

factor, the Smith Court did not find this factor to be useful in its analysis,

and we similarly did not consider it in Seering. See Smith 538 U.S. at

105, 123 S. Ct. at 1154; Seering, 701 N.W.2d at 667. The Court in Smith

conceded that the “regulatory scheme applies only to past conduct,

which was, and is, a crime,” but nevertheless reasoned that “[t]his is a

necessary beginning point, for recidivism is the statutory concern.” 538

U.S. at 105, 123 S. Ct. at 1154.

In Young v. State, the Maryland Court of Appeals was similarly

unpersuaded by the use of a criminal conviction to trigger the registry’s

requirements. 806 A.2d 233, 249 (Md. 2002). 29 There are many occasions when legislatures attach both criminal and civil sanctions to the same act or omission. The fact that the statute is triggered by a criminal conviction does not undermine the Legislature’s intent to create a sex offender registry to aid in the civil purpose of tracking the location of known sex offenders. The same is true as to restitution. Thus, although the connection between sex offender registration and past criminal behavior is clear, we accord only limited weight to this factor in light of the equally strong connection between registration and legitimate civil purposes.

Id.

The Iowa sex offender registry statute hinges upon a criminal

conviction, and thus applies to conduct that is already a crime.

However, we find Smith reasoning persuasive. When reducing recidivism

is the nonpunitive goal, using a conviction of a sexual offense is a

natural and nonsuspect means of achieving that goal. Thus, while this

factor weighs in favor of finding the scheme punitive, it does so only

slightly.

f. Rationally related to a nonpunitive purpose. We next consider

whether mandatory sex offender registration for certain juveniles has a

rational relationship to a civil purpose. In Seering, we found that, while

the 2000-foot rule “has some punitive impact . . . this factor underscores

that a statute is not punitive merely ‘because it lacks a close or perfect fit

with the nonpunitive aims it seeks to advance.’ ” 701 N.W.2d at 668

(quoting Smith, 538 U.S. at 103, 123 S. Ct. at 1152). Mandatory

registration for juveniles who have committed aggravated sexual offenses

clearly has a rational connection to the nonpunitive goal of protecting the

community, especially children, from subsequent sexual offenses.

Accordingly, this factor weighs in favor of finding the statute

nonpunitive. 30

g. Excessive in relation to the nonpunitive purpose. The final

Mendoza-Martinez factor is the most significant of the seven, as it

considers whether the legislature’s chosen means to carry out its

legitimate interests are so excessive as to cross the line from a civil

regulation to a criminal punishment. See Wallace v. State, 905 N.E.2d

371, 383 (Ind. 2009) (placing the greatest weight on this factor); Kellar v.

Fayetteville Police Dep’t, 5 S.W.3d 402, 409 (Ark. 1999) (same).

Importantly, the excessive inquiry “is not an exercise in determining

whether the legislature has made the best choice possible to address the

problem it seeks to remedy. The question is whether the regulatory

means chosen are reasonable in light of the nonpunitive objective.”

Smith, 538 U.S. at 105, 123 S. Ct. at 1154.

In Smith, the Supreme Court placed significant weight on the risk

of recidivism. The Court explained “the [Alaska] legislature’s findings are

consistent with grave concerns over the high rate of recidivism among

convicted sex offenders and their dangerousness as a class. The risk of

recidivism posed by sex offenders is ‘frightening and high.’ ” Id. at 103,

123 S. Ct. at 1153 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct.

2017, 2025 (2002)). Indeed, “[w]hen convicted sex offenders reenter

society, they are much more likely than any other type of offender to be

rearrested for a new rape or sexual assault.” McKune, 536 U.S. at 33,

122 S. Ct. at 2024) (citing Bureau of Justice Statistics, U.S. Dept. of

Justice, Sex Offenses and Offenders 27 (1997); Bureau of Justice

Statistics, U.S. Dept. of Justice, Recidivism of Prisoners Released in 1983

6 (1997)); accord Smith, 538 U.S. at 103, 123 S. Ct. at 1153. In light of

this serious risk, the Smith Court reasoned “the State can dispense with

individual predictions of future dangerousness and allow the public to

assess the risk on the basis of accurate, nonprivate information about 31

the registrants’ convictions without violating the prohibitions of the

Ex Post Facto Clause.” 538 U.S. at 104, 123 S. Ct. at 1153.

Yet, research published since the Smith decision in 2003

demonstrates that juvenile sex offenders exhibit drastically lower

recidivism rates than their adult counterparts. The Iowa Sex Offender

Research Council issued a report in 2013 that outlined the modern

research. Div. of Criminal & Juvenile Justice Planning, Iowa Dep’t of

Human Rights, Iowa Sex Offender Research Council Report to the Iowa

General Assembly 12 (2013), https://humanrights.Iowa.gov/

sites/default/files/media/SORC_1-15-13_Final_Report_%5B1%5D.pdf,

[https://web.archive.org/web/20170323233135/https://humanrights.

iowa.gov/sites/default/files/media/SORC_1-15-13_Final_Report[1].pdf].

The Council explained “studies have found extremely low rates of sexual

reoffending for juveniles and that sexual reoffending rates are much

lower than non-sexual re-offenses even among high-risk juveniles

committed to correctional facilities.” Id. (citations omitted). Juvenile

recidivism “for general delinquent behavior ranged from 8% to 58%, while

recidivism for sex offenders fell at 5% to 14%.” Id.

With respect to the effectiveness of sex offender registration,

multiple studies “have shown no significant difference in re-offense rates

between registered and non-registered juveniles.” Id. (emphasis added).

Moreover, juvenile

registration laws influence adjudication and charging practices. Fewer juveniles are adjudicated for mandatory registration offenses after laws requiring registration have gone into effect. As new policies apply harsher consequences for juvenile offenses, prosecutors become less likely to move forward on sexual assault charges. Additionally, after registry policy changes, the proportion of sex offense charges that were reduced to less severe charges increased significantly. 32

Id. Thus, juvenile recidivism is largely unaffected by the exclusion zones

and employment restrictions of the sex offender statute. What is most

affected by mandatory juvenile registration, then, is not the likelihood of

reoffending, but rather the likelihood that a juvenile will be charged with

or adjudicated delinquent of a sexual offense at all.

Furthermore, the “criminal sexual behaviors of adult sex offenders

appear to be more ‘the result of deeply ingrained and long-standing

pathology.’ ” Phoebe Geer, Justice Served? The High Cost of Juvenile Sex

Offender Registration, 27 Dev. Mental Health L. 34, 42 (2008) (quoting

Ayn Embar-Seddon & Allan D. Pass, Assessing, Managing, and Treating

Juvenile Sexual Offenders, 2004 J. Inst. Just. Int’l Stud. 112, 114

(2004)). Juvenile offenses, conversely, “appear to be more exploratory in

nature than those committed by adults and to not signify permanent

sexual deviance.” Id. “[S]tudies suggest that many of those who commit

sexual offenses as juveniles do so as a result of impulsivity and sexual

curiosity, which diminish with rehabilitation and general maturation.” In

re J.B., 107 A.3d 1, 17, 20 (Pa. 2014) (finding SORNA’s lifetime

registration provision unconstitutional as applied to juveniles).

Smith’s premise that the “frightening and high” rates of recidivism

justify the harsh impositions of the sex offender regime has proven

untrue in the context of juveniles. Indeed, the primary justification for

the sex offender registry—protecting the public from individuals

especially prone to reoffending—is substantially diminished with respect

to juvenile offenders. See Wallace, 905 N.E.2d at 383 (“[R]egistration

systems are a legitimate way to protect the public from sex offenders. Of

course if the registration and disclosure are not tied to a finding that the

safety of the public is threatened, there is an implication that the Act is

excessive.”). 33

Ultimately, automatically registering certain juveniles, and thus

publically branding them as aberrant and widely disseminating their

personal information, “makes more burdensome the punishment for a

crime after its commission.” State v. Myers, 923 P.2d 1024, 1043 (Kan.

1996). Subjecting some juveniles to mandatory registration, without any

prerequisite determination of the likelihood of reoffending, triggers

“consequences to sex offenders that go beyond the state’s interest in

public safety.” Doe v. State, 189 P.3d 999, 1018 (Alaska 2008). In light

of the totality of the statute’s impositions, coupled with the mass

publication of the juvenile’s personal information, we find that

mandatory registration for juveniles is excessive in light of its

nonpunitive purpose.

h. Balancing. Considering all of the Mendoza-Martinez factors, we

conclude that mandatory sex offender registration for juvenile offenders

is sufficiently punitive to amount to imposing criminal punishment. The

statute imposes an affirmative restraint akin to supervised probation. It

mandates the mass dissemination of offender records that are

historically kept confidential to promote the juvenile’s potential for

rehabilitation. And the sheer number of restrictions imposed on

juveniles, given the demonstrated low juvenile recidivism rate, is

excessive in light of the civil purpose of preventing multiple offenses.

2. Cruel and unusual. Upon finding that mandatory sex offender

registration for juveniles is sufficiently punitive to warrant imposing

constitutional safeguards, we next consider whether the practice goes so

far as to violate the constitutional prohibition against cruel and unusual

punishment. Importantly, that a civil regulatory regime is so excessive

as to render it effectively punitive does not, in turn, suggest that it is so 34

egregious and nefarious that the punishment is impermissibly cruel and

unusual.

T.H.’s cruel and unusual argument rests solely on his contention

that the sex offender registry regime treats juveniles like him akin to

adults, despite the “diminished culpability of juveniles.” Roper, 543 U.S.

at 571, 125 S. Ct. at 1196; see also Lyle, 854 N.W.2d at 398. He

contends that, in the absence of any consideration of the mitigating

factors outlined in Miller, mandatory registration for juveniles is grossly

disproportionate and therefore violative of the Iowa and United States

Constitutions. See Miller v. Alabama, 567 U.S. 460, 477–78, 132 S. Ct.

2455, 2468 (2012); State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).

On our review of Chapters 232 and 692A above, we found that

juveniles like T.H. are not in fact treated identically to adult offenders.

Chapter 692A indeed strips juvenile courts of the discretion to suspend

the initial registration requirement for certain aggravated juvenile

offenders. Chapter 232, however, retains the juvenile court’s authority to

determine, at the time the dispositional order is terminated, whether it is

in society’s and the juvenile’s best interests to continue the juvenile’s sex

offender registration. Accordingly, so long as a juvenile petitions to

terminate his or her dispositional order prior to its expiration, the

juvenile court retains authority to determine whether the child shall

remain on the registry and abide by regime’s requirements akin to an

adult.

We find this cooperative regime strikes a reasonable balance

between protecting society from the risk of aggravated offenders

committing subsequent offenses and accounting for the youthful

circumstances of juvenile offenders. The legislature has opted to place

aggravated juvenile offenders on the sex offender registry throughout the 35

duration of their dispositional order, which is directly tied to the

juvenile’s period of rehabilitation. We find it is not excessively severe for

the legislature to put additional constraints in place during the period

when a juvenile adjudicated delinquent of an aggravated sexual offense is

receiving reformative services, but has not yet been deemed rehabilitated.

Because we find the statute’s imposed punishment is not grossly

disproportionate, “no further analysis is necessary.” Seering, 701

N.W.2d at 670 (quoting State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa

2000)).

IV. Conclusion.

For the foregoing reasons, we affirm the decision of the court of

appeals.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

Appel, J., concurs in part and dissents in part, joined by Wiggins

and Hecht, JJ. Mansfield, J., files a separate concurrence in part and

dissent in part, joined by Waterman and Zager, JJ. 36

#16–0158, In re T.H.

APPEL, Justice (concurring in part and dissenting in part).

The majority reasons automatic, mandatory registration for

juvenile sex offenders is in fact punishment but holds that such

registration does not amount to cruel and unusual punishment under

article I, section 17 of the Iowa Constitution. I agree the registration is

punishment, however, I respectfully dissent from the majority’s holding

that the registration is not cruel and unusual.

I. Preliminary Concepts Regarding the Cruel and Unusual Punishment Clause.

A. Relevant Constitutional and Statutory Provisions.

1. Constitutional provisions. The Eighth Amendment to the United

States Constitution provides, “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

U.S. Const. amend. VIII. Similarly, article I, section 17 of the Iowa

Constitution provides, “Excessive bail shall not be required; excessive

fines shall not be imposed, and cruel and unusual punishment shall not

be inflicted.” Iowa Const. art. I, § 17.

T.H. does not suggest an analytical framework under the Iowa

Constitution different from that under the United States Constitution.

See In re Det. of Matlock, 860 N.W.2d 898, 903 (Iowa 2015). Even so, we

can independently apply the established federal framework, even if the

United States Constitution and the Iowa Constitution contain similar or

identical language. See Racing Ass’n of Cent. Iowa v. Fitzgerald,

675 N.W.2d 1, 6 (Iowa 2004).

2. Statutory provisions. This case involves a number of statutory

provisions that are relevant to T.H.’s constitutional challenge to

automatic, mandatory sex offender registration. I delineate three 37

statutory provisions to provide context but bring attention to other

relevant statutory provisions throughout this concurrence in part and

dissent in part.

The juvenile court adjudicated T.H. delinquent for performing a sex

act by force in violation of Iowa Code section 709.4(1)(a). See Iowa Code

§ 709.4(1)(a) (2016) (“A person commits sexual abuse in the third degree

when the person performs a sex act . . . by force or against the will of the

other person . . . .”).

Section 692A.102(1)(c)(10) classifies a conviction for “[s]exual

abuse in the third degree in violation of section 709.4, subsection 1,

paragraph “a”, . . . if committed by a person fourteen years of age or

older[,]” as a tier III offense. Id. § 692A.102(1)(c)(10).

Section 692A.103(4) requires the court to order the juvenile “to

register [as a sex offender] if the adjudication was for an offense

committed by force” and the juvenile was at least fourteen years old at

the time he or she committed the offense. Id. § 692A.103(4). In other

words, the court has no discretion whatsoever in ordering a juvenile to

register as a sex offender if it finds the applicable criteria. In this case,

the court found it had no discretion to waive the requirement of

registration because T.H. was fourteen at the time of the offense and T.H.

had committed the offense with force.

B. Caselaw from Other Jurisdictions. The Ohio Supreme Court

considered whether automatic, lifetime sex offender registration and

notification requirements were cruel and unusual as applied to juveniles

under the United States and Ohio Constitutions. 2 In re C.P., 967 N.E.2d

2The court also considered whether automatic, lifetime sex offender registration and notification requirements violated the defendant’s due process rights. In re C.P., 967 N.E.2d 729, 746–50 (Ohio 2012). 38

729, 737–46 (Ohio 2012). The court first undertook an examination

under the Eighth Amendment of the United States Constitution by

applying the two-step analysis from Graham v. Florida, 560 U.S. 48, 61,

130 S. Ct. 2011, 2022 (2010). Id. at 737–44. As to the first step, the

court considered whether a national consensus against automatic,

lifetime sex offender registration and notification requirements existed.

Id. at 738–39. The court observed that the Federal Sex Offender

Registration and Notification Act (SORNA) required states to conform to

its provisions or risk loss of federal funds. Id. at 738. Many states,

however, hesitated in complying with SORNA because it included

juveniles on the registries. Id. at 738.

As to the second step, the court exercised its independent

judgment to determine whether automatic, lifetime sex offender

registration and notification requirements violated the Eighth

Amendment. Id. at 740–44. The court considered the culpability of

juveniles, the nature of the offense omitted, the severity of the

punishment, and penological justifications. Id. First, it observed

juveniles are less morally culpable and more capable of change than

adult offenders. Id. at 740–41. The reprehensible acts of juveniles “are

less likely to reveal an unredeemable corruptness.” Id. at 740. Second,

the court stated the punishment embodied in the applicable Ohio statute

“appl[ied] to juveniles with a reduced degree of moral culpability” because

“a juvenile who did not kill or intend to kill has ‘twice diminished moral

culpability’ on account of his age and the nature of his crime.” Id. at 741

(quoting Graham, 560 U.S. at 69, 130 S. Ct. at 2027).

Third, the court stated automatic, lifetime sex offender registration

and notification requirements, with the possibility of the court lifting

them after twenty-five years, were “especially harsh punishments for a 39

juvenile.” Id. The court reasoned the punishment “is imposed at an age

at which the character of the offender is not yet fixed.” Id. (emphasis

added). Commenting on the stigma of the sex offender label, the court

further reasoned, “Before a juvenile can even begin his adult life, . . . the

world will know of his offense. . . . His potential will be squelched before

it has a chance to show itself.” Id.

Lastly, the court considered whether the theories of punishment

justified imposing automatic, lifetime sex offender registration and

notification requirements. Id. at 742–44. The court commented,

“Notification and registration anchor the juvenile offender to his crime”

instead of rehabilitating him. Id. at 742. The court reasoned the theory

of retribution did not justify imposing such a serious punishment when

juveniles were less culpable. Id. at 742–43. Additionally, the court

discounted the theory of deterrence because juveniles were less likely to

weigh future risks and consequences when making decisions. Id. at 743.

As for the theory of rehabilitation, the court concluded automatic,

lifetime sex offender registration and notification requirements thwarted

the rehabilitative goals of the juvenile court system. Id. at 744.

Specifically, publication of a juvenile’s offense not only made

reintegration into society more difficult but also inspired ostracism,

vigilantism, and public shaming. Id. at 743–44. In sum, the court held

the automatic imposition of lifetime sex offender registration and

notification requirements violated the Eighth Amendment. Id. at 744.

Moreover, the court found the requirements unconstitutional

under the prohibition against cruel and unusual punishment of the Ohio

Constitution. Id. at 746. The court reasoned the requirements

“frustrate[d] two of the fundamental elements of juvenile rehabilitation:

confidentiality and the avoidance of stigma.” Id. It stated, 40

“Confidentiality has always been at the heart of the juvenile justice

system[,]” yet “the very public nature of the penalty” evidenced the lack of

proportionality. Id. at 745. The court further reasoned juvenile judges

possessed “absolutely no discretion” in imposing the requirements when

“the decided emphasis [of juvenile courts] should be upon individual,

corrective treatment.” Id. (second quoting In re Agler, 249 N.E.2d 808,

810 (Ohio 1969)). The court therefore held the punishment lacked

proportionality to the crime such that it “shock[ed] the sense of justice of

the community.” See id. at 746 (quoting State v. Chaffin, 282 N.E.2d 46,

49 (Ohio 1972)).

The Pennsylvania Supreme Court held that lifetime registration

under SORNA as applied to juveniles was unconstitutional. In re J.B.,

107 A.3d 1, 20 (Pa. 2014). The reasoning of J.B. is instructive, although

the court found a violation of due process rights and did not address

whether lifetime registration violated the prohibition against cruel and

unusual punishment. See id. at 14–20. The court reasoned “the

irrebuttable presumption that all juvenile offenders ‘pose a high risk of

committing additional sexual offenses’ . . . is not universally true and a

reasonable alternative means currently exist for determining which

juvenile offenders are likely to reoffend.” Id. at 14 (quoting 42 Pa. Cons.

Stat. § 9799.11(a)(4)). Notably, the court reasoned juvenile sex offenders

did not have a meaningful opportunity to challenge the presumption

because the delinquency hearing did not consider whether the individual

offender was at risk of reoffending. Id. at 17. Rather, the delinquency

adjudication automatically designated the juvenile as a sex offender with

the accompanying faulty presumption. Id. The court also rejected the

suggestion that a hearing twenty-five years in the future provided an

opportunity to be heard on the presumption. Id. 41

Rejecting the presumption, the court stated research shows “the

vast majority of juvenile offenders are unlikely to recidivate.” Id. at 18. It

also noted juveniles and adults are fundamentally different because of

the malleability of juveniles to rehabilitation. Id. In light of the fact that

“the concepts of balanced and restorative justice” guide the juvenile

justice system, the court reasoned “automatic registration remove[d] the

juvenile judges’ ability to consider the rehabilitative prospects of

individual juvenile sexual offenders.” Id. Lastly, the court reasoned

individualized risk assessment provided a reasonable alternative means

of evaluating which offenders posed a high risk of recidivism. Id. at 19.

In a case addressing whether mandatory lifetime postrelease

supervision of juvenile sex offenders was cruel and unusual, the Kansas

Supreme Court held that such supervision violated the Eighth

Amendment. State v. Dull, 351 P.3d 641, 660 (Kan. 2015). The

reasoning in Dull is persuasive as to the issue of whether automatic,

mandatory sex offender registration amounts to cruel and unusual

punishment.

In Dull, the court found the defendant failed to show a national

consensus against mandatory lifetime postrelease supervision for

juvenile sex offenders. Id. The court, however, used independent

judgment to conclude that such supervision was cruel and unusual for

two reasons. Id. First, the diminished moral culpability of juveniles

because of certain characteristics attributable to youth—“recklessness,

immaturity, irresponsibility, impetuousness, and ill-considered decision

making, along with their lower risks of recidivism”—tapered penological

justifications. Id. Second, mandatory lifetime postrelease supervision

was a “severe” sanction that “severely restricted” the juvenile’s liberty.

Id. 42

On the contrary, the Nebraska Supreme Court held lifetime

community supervision was not cruel and unusual under the Eighth

Amendment. State v. Boche, 885 N.W.2d 523, 538–39 (Neb. 2016). The

court applied its reasoning to resolve the issue of whether lifetime

community supervision was cruel and unusual under the Eighth

Amendment to address the parallel issue of whether lifetime registration

violated the same, even if such registration could be described as

punishment as to the defendant. See id. at 532–38. As to the first issue,

the court reasoned Nebraska’s statutory scheme allowed for a level of

supervision narrowly tailored to each offender and subject to yearly

review, with a requirement that the conditions imposed be the least

restrictive available based on the risk of recidivism and public safety. Id.

at 537. Moreover, the offender could appeal the restrictions. Id. at 533.

The court found Nebraska’s statutory scheme was “individualized,

adaptive, and incentivizes rehabilitation.” Id. at 538.

As to the second issue, the court held lifetime registration was not

punishment. Id. at 531–32. The court declined to revisit State v. Worm,

680 N.W.2d 151 (Neb. 2004), on this issue. Id. Moreover, the court

discounted the defendant’s brief citing studies examining the recidivism

rates of juvenile sex offenders because the defendant did not present the

studies to the district court, such that neither that court nor the

supreme court had evidence before it concerning his argument. Id. at

531.

Other jurisdictions have also found that sex offender registration is

not cruel and unusual. See United States v. Juvenile Male, 670 F.3d 999,

1010 (9th Cir. 2012) (holding the potential shame and humiliation

resulting from the twenty-five-year registration did not satisfy the high

standard necessary to violate the Eighth Amendment); In re J.C., 221 43

Cal. Rptr. 3d 579, 591 (Ct. App. 2017) (holding juvenile sex offender

registration was not punishment because the offender “failed to show the

limited degree of public disclosure applicable to juveniles required to

register pursuant to [the applicable statute] is sufficiently burdensome to

distinguish it from that applicable to adult offenders”); In re J.O.,

383 P.3d 69, 75 (Colo. App. 2015) (holding juvenile sex offender

registration was not punishment in the first instance and thus declining

to address whether such registration was cruel and unusual under the

Eighth Amendment); In re J.W., 787 N.E.2d 747, 762 (Ill. 2003) (holding

lifetime juvenile sex-offender registration did not constitute cruel and

unusual punishment because of the limited dissemination of the

offender’s information). But see People v. Dipiazza, 778 N.W.2d 264,

273–74 (Mich. Ct. App. 2009) (holding ten-year sex offender registration

requirement was cruel and unusual as applied to an eighteen-year-old

defendant in a consensual sexual relationship with a teen who was

almost fifteen years old).

II. Analysis of the Cruel and Unusual Punishment Clause as Applied to This Case.

The underlying principle of the Cruel and Unusual Punishment

Clause is the “bedrock rule of law that punishment should fit the crime.”

State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009). Based on this

principle, I would find automatic, mandatory sex offender registration as

applied to juveniles violates the cruel and unusual punishment clause of

the Iowa Constitution because of the lack of proportionality between the

punishment and the offense committed. 3

3That I addressed the issue of whether automatic, mandatory sex offender registration is cruel and unusual under the Iowa Constitution does not preclude the finding of a violation under the United States Constitution. 44

A. Low Recidivism and Sexual Reoffense Rates of Juvenile Sex

Offenders Coupled with Their Responsiveness to Rehabilitative

Treatment. The risk of juvenile sex offenders generally recidivating and

sexually reoffending are low. Empirical studies have been dispelling the

fear-based myth that juvenile sex offenders have a propensity to commit

sex offenses as adults. See Human Rights Watch, Raised on the Registry:

The Irreparable Harm of Placing Children on Sex Offender Registries in the

U.S. 30–31 (2013), https://www.hrw.org/sites/default/files/reports/

us0513_ForUpload_1.pdf [hereinafter Raised on the Registry]; Ashley R.

Brost & Annick-Marie S. Jordan, Punishment That Does Not Fit the Crime:

The Unconstitutional Practice of Placing Youth on Sex Offender Registries,

62 S.D. L. Rev. 806, 809 (2017) [hereinafter Brost & Jordan]; Amanda M.

Fanniff et al., Juveniles Adjudicated for Sexual Offenses: Fallacies, Facts,

and Faulty Policy, 88 Temp. L. Rev. 789, 793–95 (2016).

In State v. Graham, we acknowledged “most juvenile offenders who

commit sex offenses will outgrow their behavior and . . . juveniles

adjudicated delinquent for sex offenses have extremely low rates of

recidivism generally and even lower rates of sexual reoffending.”

897 N.W.2d 476, 484 (Iowa 2017). We charted comprehensive studies

finding that juveniles posed little risk of recidivism. Id. at 484–85 (citing

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 & L. 89, 96–

97, 101 (2008); Elizabeth J. Letourneau & Kevin S. Armstrong,

Recidivism Rates for Registered and Nonregistered Juvenile Sex Offenders,

20 Sexual Abuse: J. Res. & Treatment 393, 400 (2008); Franklin E.

Zimring et al., Investigating the Continuity of Sex Offending: Evidence from

the Second Philadelphia Birth Cohort, 26 Just. Q. 58 (2009); Franklin E. 45

Zimring et al., Sexual Delinquency in Racine: Does Early Sex Offending

Predict Later Sex Offending in Youth and Young Adulthood?,

6 Criminology & Pub. Pol’y 507 (2007)); see also Amy E. Halbrook,

Juvenile Pariahs, 65 Hastings L.J. 1, 13–15 (2013) [hereinafter Halbrook]

(explaining in depth the Caldwell, Letourneau, and Zimring studies that

found low risks of recidivism and sexual reoffending among juvenile sex

offenders).

The Office of Sex Offender Sentencing, Monitoring, Apprehending,

Registering, and Tracking of the United States Department of Justice

recently published a research brief reviewing the state of research on

juvenile sexual reoffending and assessing the current practice in juvenile

sex offender management. Christopher Lobanov-Rostovsky, U.S. Dep’t of

Justice, Recidivism of Juveniles Who Commit Sexual Offenses (July 2015),

https://smart.gov/pdfs/JuvenileRecidivism.pdf. The brief reached some

key conclusions from the collected empirical evidence. Id. at 5.

First, the observed sexual recidivism rates of juveniles who commit sexual offenses range from about 7 to 13 percent after 59 months, depending on the study. Recidivism rates for juveniles who commit sexual offenses are general lower than those observed for adult sex offenders. . . . [R]ecidivism data suggest that there may be fundamental differences between juveniles who commit sexual offenses and adult sexual offenders, particularly in their propensity to sexually reoffend.

Second, a relatively small percentage of juveniles who commit a sexual offense will sexually reoffend as adults. The message for policymakers is that juveniles who commit sexual offenses are not the same as adult sexual offenders, and that all juveniles who commit a sexual offense do not go on to sexually offend later in life. . . .

Finally, juveniles who commit sexual offenses have higher rates of general recidivism than sexual recidivism. This suggests that juveniles who commit sexual offenses may 46 have more in common with other juveniles who commit delinquent acts than with adult sexual offenders . . . . Id. (emphases added).

Additionally, juveniles are more responsive to treatment and

rehabilitation than adult sex offenders. Carole J. Petersen & Susan M.

Chandler, Sex Offender Registration and the Convention on the Rights of

the Child: Legal and Policy Implications of Registering Juvenile Sex

Offenders, 3 Wm. & Mary Pol’y Rev. 1, 31 (2011). Juvenile sex offenders

who receive treatment for their sexual offenses exhibit lower recidivism

rates than both treated adult sex offenders and untreated juvenile sex

offenders. Phoebe Geer, Justice Served? The High Cost of Juvenile Sex

Offender Registration, 27 Dev. Mental Health L. 34, 42 (2008) [hereinafter

Geer].

Juvenile sex offenses do not necessarily signify permanent sexual

deviance but appear to be exploratory in nature and a product of

misplaced sexual curiosity. Id.; see Catherine L. Carpenter, Throwaway

Children: The Tragic Consequences of a False Narrative, 45 Sw. L. Rev.

461, 492 (2016) [hereinafter Carpenter] (“[P]oor social competency skills

and deficits in self-esteem can best explain sexual deviance in children,

rather than paraphilic interests and psychopathic characteristics that

are more common in adult offenders.” (quoting Ass’n for the Treatment

of Sexual Abusers, Adolescents Who Have Engaged in Sexually Abusive

Behavior: Effective Policies and Practices, (Oct. 30, 2012),

www.atsa.com/pdfs/Policy/AdolescentsEngagedSexuallyAbusiveBehavior.

pdf [https://perma.cc/5VKV-6SPD])).

The United States Supreme Court has recognized the malleability

of juveniles and their capacity for change in the landmark Roper–

Graham–Miller trio. E.g., Miller v. Alabama, 567 U.S. 460, 471–73,

132 S. Ct. 2455, 2464–65 (2012); Graham, 560 U.S. at 68, 130 S. Ct. at 47

2026; Roper v. Simmons, 543 U.S. 551, 569–70, 125 S. Ct. 1183, 1195

(2005). “[C]hildren are constitutionally different from adults . . . .”

Miller, 567 U.S. at 471, 132 S. Ct. at 2464. Thus, juveniles “are less

deserving of the most severe punishments” because of their “diminished

culpability and greater prospects for reform.” Id. (first quoting Graham,

560 U.S. at 68, 130 S. Ct. at 2026). The Supreme Court relied on three

points of difference between juveniles and adults. Id. First, juveniles

“have a ‘lack of maturity and an underdeveloped sense of

responsibility.’ ” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).

Second, they “are more vulnerable . . . to negative influences and outside

pressures.” Id. (quoting Roper, 543 U.S. at 569, 125 S. Ct. at 1195).

Lastly, their “character is not as ‘well formed’ as an adult’s; his [or her]

traits are ‘less fixed’ and his [or her] actions less likely to be ‘evidence of

irretrievabl[e] deprav[ity].’ ” Id. (alterations in original) (quoting Roper,

543 U.S. at 570, 125 S. Ct. at 1195). Furthermore, “[w]e have

emphasized that the constitutionally significant distinction between

adults and children is applicable to all crimes, not just some crimes.”

State v. Crooks, 911 N.W.2d 153, 178 (Iowa 2018) (Appel, J., concurring

in part and dissenting in part).

Accordingly, because of a low risk of recidivism in tandem with

responsiveness to rehabilitative treatment, the current policies and

practices designed to prevent adult sexual reoffending lack

proportionality between the crime and the punishment as applied to

juveniles.

B. Particularly Harsh Consequences on Youth. Although the

risk of reoffending is low, the consequences that juveniles encounter are

especially severe. They encounter “incredible barriers to housing,

employment, and education.” Brost & Jordan, 62 S.D. L. Rev. at 820; 48

accord Stand Up for What’s Right and Just (SURJ), Nat’l Juvenile Justice

Network, The Case for Modifying Juvenile Sex Offender Registry

Requirements in Delaware 3 (July 2011),

http://www.njjn.org/uploads/digital-library/DE_Juvenile-Sex-Offender-

Research-Brief_SURJ_7-30-11.pdf [https://perma.cc/6HQA-WV24]. The

label of sexual offender branded like an indelible scarlet letter makes it

difficult for juveniles on the registry to integrate into society and become

a productive, contributing member of society. See People ex rel. J.L.,

800 N.W.2d 720, 725 (S.D. 2011) (Meierhenry, J., concurring specially);

Carpenter, 45 Sw. L. Rev. at 472 (“Without secure prospects for

employment, education, or a stable living situation, children labeled as

sex offenders are destined to spiral downward.” (Footnotes omitted.)).

The adverse psychological damage to a child’s identity formation

and social development cannot be understated. See Raised on the

Registry 50–55. Juveniles face stigmatization, shame, and isolation from

family and friends. Id. at 50–51; see generally Stacey Hiller, The Problem

with Juvenile Sex Offender Registration: The Detrimental Effects of Public

Disclosure, 7 B.U. Pub. Int. L.J. 271, 292 (1998). At least twenty percent

of juveniles on the registry will attempt suicide because of social stigma

and psychological harm. Brost & Jordan, 62 S.D. L. Rev. at 823.

Among 281 juvenile sex offenders and family members of fifteen

additional juvenile sex offenders interviewed by the Human Rights

Watch, 250 of them (84.5 percent) described feeling depressed and

isolated. Raised on the Registry 51. They also had difficulty in

developing relationships and had thoughts of suicide. Id. In fact, fifty-

eight individuals (19.6 percent) attempted suicide. Id. 49

Phoebe Geer described the damaging impact of registration and

notification requirements as well as the stigmatization of the sex offender

label:

Operating directly contrary to the rehabilitative goals of the juvenile justice system, sex offender registration and notification laws can publicly and permanently mark juvenile sex offenders as deviant criminals who should be feared and shunned. While many juvenile proceedings are confidential and sealed, sex offender registration and notification laws, by creating a public record, place the sexual offense of a juvenile directly and prominently in the public eye.

. . . [F]ew labels are as damaging in today’s society as “convicted sex offender.” Sex offenders are, as one scholar put it, “the lepers of the criminal justice system,” with juveniles listed in the sex offender registry sharing this characterization. The state’s interest in and responsibility for a juvenile’s well-being and rehabilitation is not promoted by a practice that makes a juvenile’s sex offenses public.

Geer, 27 Dev. Mental Health L. at 49 (emphases added) (quoting

Robert E. Shepherd, Advocating for the Juvenile Sex Offender, Part 2,

21 Crim. Just. 52, 53 (2007)).

Juvenile sex offenders on the registry often encounter vigilante

attacks. The Human Rights Watch reported that among 296 cases that it

had examined, 154 (fifty-two percent) juvenile sex offenders experienced

either violence or threats of violence against themselves or family

members because of their registration. Raised on the Registry 56.

Consequences of the juvenile’s registration status also attaches to

the whole family. Halbrook, 65 Hastings L.J. at 18; Raised on the

Registry 60–64. Family members of registrants encounter “isolation,

threats, harassment, stress, and housing displacement.” Halbrook,

65 Hastings L.J. at 18.

Additionally, pursuant to Iowa Code chapter 692A, juvenile sex

offenders must adhere to rigid restrictions on movement. For example, 50

T.H. must notify in person the county sheriff within five business days if

he changes his residence, employment, or school. Iowa Code

§ 692A.104(1)–(2) (emphasis added). T.H. must appear in person to verify

the location of his residence, employment, and school every three

months. Id. § 692A.108(1)(c).

The statute also imposes a number of exclusion zones. Except for

the school he attends, T.H. may not be present upon, nor loiter within

300 feet of, the property of an elementary or secondary school. Id.

§ 692A.113(1)(a)–(b). Additionally, T.H. may not be present upon (absent

prior written permission by the library administrator), nor loiter within

300 feet of, the property of a public library. Id. § 692A.113(1)(f)–(g). T.H.

may not be present upon (unless he receives written permission from the

child care facility), nor loiter within 300 feet of, the property of a child

care facility. Id. § 692A.113(1)(d)–(e). He may not be present upon, nor

loiter within 300 feet of, “any place intended primarily for the use of

minors.” Id. § 692A.113(1)(h). T.H. may not loiter on the premises of any

facility for dependent adults and may not be present at an event that

provides services or programming for dependent adults. Id.

§ 692A.115(1).

Furthermore, the statute imposes employment restrictions. See id.

§§ 692A.113(3)(a)–(e), .115. For example, while on the registry, T.H. may

not work or volunteer at a “public or nonpublic elementary or secondary

school, child care facility, or public library.” Id. § 692A.113(3)(c). He

may not work or volunteer at “any place intended primarily for use by

minors including but not limited to a playground, a children’s play area,

recreational or sport-related activity area, a swimming or wading pool, or

a beach.” Id. § 692A.113(3)(d). 51

Lastly, the statute imposes residency restrictions. If the court

requires T.H. to register after becoming an adult, he may not reside

within 2000 feet of a school or child care facility. Id. § 692A.114(2).

The punishment is especially severe because confidentiality is

nonexistent. The public may view T.H.’s personal information on the sex

offender registry website. Id. § 692A.121(1). The registry contains T.H.’s

full name; photographs; date of birth; home address; and physical

description, including scars, marks, or tattoos. Id.

§ 692A.121(2)(b)(1)(a)–(e). Furthermore, the registry provides the

statutory citation and text of his offense. Id. § 692A.121(2)(b)(1)(f). It

also provides information on whether T.H. is subject to residency

restrictions and exclusion zones. Id. § 692A.121(2)(b)(1)(g)–(h). The

public can also request additional information concerning T.H. by

contacting the county sheriff’s office and simply providing T.H.’s name

and T.H.’s date of birth. Id. § 692A.121(5)(a). Additional information

runs the gamut—a list of schools T.H. attended, employment

information, locations and dates of any temporary lodging, and his

vehicle information. Id. § 692A.121(5)(b).

In sum, registration and notification requirements nullify the

private nature of our juvenile court system. Moreover, the stigmatization

of sexual offenders perpetuates the mistakes of youth into the

permanence of adulthood. Accordingly, I would find the punishment is

disproportionate to the crime, especially in light of the diminished moral

culpability of juveniles. See Crooks, 911 N.W.2d at 179 (“[C]ulpability is

a cornerstone of proportional punishment.”).

C. No Meaningful Opportunity to Show Rehabilitation. The

purported principal goal of the juvenile justice system is rehabilitation

rather than punishment. McKeiver v. Pennsylvania, 403 U.S. 528, 544 52

n.5, 91 S. Ct. 1976, 1986 n.5 (1971). Yet juvenile sex offenders have no

meaningful opportunity to show rehabilitation.

Iowa Code section 692A.128 provides an escape valve in theory but

not in practice. A court may not grant an application to modify the

registration requirements unless the application meets all of the following

criteria:

a. The date of the commencement of the requirement to register occurred at least two years prior to the filing of the application for a tier I offender and five years prior to the filing of the application for a tier II or III offender.

b. The sex offender has successfully completed all sex offender treatment programs that have been required.

c. A risk assessment has been completed and the sex offender was classified as a low risk to reoffend. The risk assessment used to assess an offender as a low risk to reoffend shall be a validated risk assessment approved by the department of corrections.

d. The sex offender is not incarcerated when the application is filed.

e. The director of the judicial district department of correctional services supervising the sex offender, or the director’s designee, stipulates to the modification, and a certified copy of the stipulation is attached to the application.

Iowa Code § 692A.128(2)(a)–(e). Section 692A.128 does not provide a realistic chance for release. Although section 692A.128 provides a purported escape valve, this escape valve is inadequate because it requires the approval of the director of the judicial district department of correctional services. A unilateral decision by the director nullifies any meaningful opportunity to be heard on the issue of rehabilitation because the director’s stipulation is likely unforthcoming. Section 692A.128(6) exempts the requirement of this stipulation if the offender is no longer under the supervision of the 53

juvenile court or a judicial district department of correctional services. Id. § 692A.128(6). This exemption does not change the dynamics of the odds stacked up against the offender because it requires an additional hurdle: the agreement of the department of corrections to perform a risk assessment on the offender. See id. As with the stipulation, such an agreement is within the unilateral authority of the department of corrections. Furthermore, section 692A.128 mandates the completion of all required sex offender treatment programs. Yet section 692A.103(4) requires juvenile judges to impose mandatory, automatic sex offender registration without any individualized risk assessment prior to the imposition of registration requirements. Section 692A.103(4) does not give discretion to juvenile judges to examine the individual’s prior criminal record, evaluate his or her personality and social history, assess reports of any psychiatric examinations of him or her, and any other pertinent information in relation to whether to impose the requirements. Without such an individualized risk assessment, it is rather difficult to know which treatment program a juvenile sex offender should be required to undergo. I now turn to Iowa Code chapter 232. Through its interpretation of this chapter, the majority reasons juveniles have an opportunity to be heard on the question of mandatory registration at the close of jurisdiction of the juvenile court. Specifically, section 232.54(1)(i) provides,

With respect to a dispositional order requiring a child to register as a sex offender pursuant to chapter 692A, the juvenile court shall determine whether the child shall remain on the sex offender registry prior to termination of the dispositional order. 54

Id. § 232.54(1)(i) (emphasis added). This purported escape valve, however, provides for a hearing at the wrong juncture. The court should hold a hearing concerning rehabilitation after the juvenile has an opportunity to develop maturity and present corresponding evidence of rehabilitation and mitigating circumstances. Ordinarily, this should occur sometime after the child reaches the age of twenty-five when full maturity and character formation is ordinarily complete. A court may deny the opportunity to show rehabilitation and maturity at the early age of eighteen, prior to reaching full maturity, only upon a showing of incorrigibility and irredeemable corruption. The record shows no evidence that T.H. received a Miller-type hearing showing that he is incorrigible and irredeemably corrupt. Our juvenile justice system should not forget the principle on

which it was founded—juveniles are constitutionally different from

adults. Moreover, “seek[ing] to hold juveniles accountable for their

actions and to protect the public does not negate the concept that rehabilitation remains a more important consideration in the juvenile

justice system than in the criminal justice system . . . .” People v. Taylor,

850 N.E.2d 134, 141 (Ill. 2006); accord In re S.K., 587 N.W.2d 740, 742

(S.D. 1999) (stating the purpose of the juvenile court system is to

rehabilitate, not punish). Juvenile sex offenders should have a

meaningful opportunity to demonstrate rehabilitation and maturity after

their characters are fully formed.

III. Conclusion.

Based on the foregoing reasons, I would vacate the decision of the

court of appeals, vacate the judgment of the district court, and remand.

Wiggins and Hecht, JJ., join this concurrence in part and dissent

in part. 55

MANSFIELD, Justice (concurring in part and dissenting in part).

I concur in parts III.A and III.B of the court’s opinion and in part

III.C.2’s conclusion that Iowa’s sex offender registration requirements are

not unconstitutional as applied to juveniles. However, I cannot join

much of the discussion in part III.C.1.

We have held that Iowa’s sex offender registration laws do not

constitute punishment under either the United States or the Iowa

Constitutions. See Formaro v. Polk County, 773 N.W.2d 834, 843–44

(Iowa 2009); State v. Seering, 701 N.W.2d 655, 666–68 (Iowa 2005). I do

not agree that registration which is nonpunitive for adults becomes

punitive when applied in a more lenient way to juveniles. 4

I. No Caselaw Supports the Majority’s Distinction.

The majority cites no cases supporting a constitutional distinction

between registration of adult sex offenders and registration of juvenile

sex offenders. There are many cases to the contrary.

A California appellate court has declined to hold that juvenile sex

offender registration, as opposed to adult sex offender registration,

constitutes punishment. In re J.C., 221 Cal. Rptr. 3d 579, 593 (Ct. App. 2017). There, the court rejected the juvenile’s argument that “children

were different” and that registration of juveniles could still be

punishment notwithstanding a previous finding under both the State

and the Federal Constitutions that registration of adults was not. Id. at

588–91 (citing In re Alva, 92 P.3d 311, 313 (2004)). Although the court

4As noted by the majority, one key distinction is that the juvenile court has discretion to terminate the registration requirement at the termination of the dispositional order. See Iowa Code § 232.54(1)(i) (2016). That dispositional order will terminate no later than January 2019, when T.H. turns eighteen. The juvenile court will have discretion to terminate T.H.’s registration at that point. 56

noted juvenile identifying information was not published on the registry

website, other disclosure requirements still applied to juveniles. Id. at

590–91.

Likewise, the Nebraska Supreme Court saw “no principled reason”

to depart from its holding that lifetime sex offender registration was not

punishment, just because the offense was committed by a juvenile. See

State v. Boche, 885 N.W.2d 523, 531–32 (Neb. 2016). It added, “Other

jurisdictions which have considered the issue as applied to juveniles

have reached the same conclusion.” Id. at 532.

The Illinois Supreme Court similarly rejected a claim that the sex

offender registry of juveniles involved punishment. In re J.W., 787

N.E.2d 747, 762 (Ill. 2003). The court had previously held that the

registration requirements did not constitute punishment as applied to

adults. See id. The court was, however, “not persuaded that requiring a

juvenile sex offender to register and allowing a very limited public access

to notification concerning the juvenile’s status as a sex offender compels

a different result.” Id.

The South Carolina Supreme Court held in In re Justin B. that

mandatory sex offender registration was nonpunitive, even as applied to

juveniles. 799 S.E.2d 675, 679 (S.C. 2017). According to the court,

The purpose of the sex offender registry has nothing to do with retribution, and any deterrent effect of registration derives from the availability of information, not from punishment. Instead, the purpose of the registry and the electronic monitoring requirement is to protect the public and aid law enforcement.

Id. There, the registration requirements applied equally to all offenders

“convicted or declared delinquent for criminal sexual conduct with a

minor in the first degree,” “regardless of age.” Id. at 677. 57

In Mississippi, the state supreme court upheld the required

registration of a juvenile sex offender. L.B.C. v. Forrest Cty. Youth Ct., ___

So. 3d ___, ___, 2017 WL 5897905, at *6 (Miss. 2017) (en banc). There,

the court noted that courts have no discretion regarding whether a

qualified delinquent must register as a sex offender: “As long as the

delinquent is fourteen years old and committed an offense that involved

the use of force, the delinquent is required to register.” Id. at *5.

Further, there were no confidentiality distinctions between juveniles and

adults who must register; the names and addresses of offending juveniles

were not confidential so that they may be used for purposes of the

registry. Id. The court concluded that “the purpose of the Mississippi

Sex Offenders Registration law is to assist law enforcement and protect

the community and vulnerable populations.” Id. The court continued,

“The requirement to register as a sex offender does not punish the

registrant but protects the public from repeat offenses. This purpose is

no less a valid concern with juvenile delinquents.” Id.

In In re J.O., the Colorado Court of Appeals found that the

statutory sex offender registration of a juvenile did not amount to

punishment. 383 P.3d 69, 75 (Colo. App. 2015). Noting that the juvenile

could petition to be removed from the registry after successfully

completing and being discharged from his sentence, the court “decline[d]

to depart from Colorado cases holding that sex offender registration . . .—

even as applied to juveniles—does not constitute punishment.” Id.

From reading the majority opinion, one might think that a decision

of the Maryland Court of Special Appeals supports the majority’s

reasoning. See In re Nick H., 123 A.3d 229 (Md. Ct. Spec. App. 2015).

However, that case actually found that registration of juvenile sex

offenders was not punitive. Id. at 250–51. 58

It is true that in some of the foregoing states, information about

registered juvenile sex offenders is not readily available to the public.

But in others, it is, just as in Iowa. See Justin B., 799 S.E.2d at 680;

L.B.C., ___ So. 3d at ___, 2017 WL 5897905, at *5.

I might not make the same policy choice as our legislature, but

that is not the issue. As noted by the majority, “The question is whether

the regulatory means chosen are reasonable in light of the nonpunitive

objective.” Smith v. Doe, 538 U.S. 84, 105, 123 S. Ct. 1140, 1154

(2003). 5

Including both adults and juveniles who commit forcible sex

offenses on the publicly available sex offender registry meets the

foregoing standard. I suspect Iowans don’t care whether a confirmed

child molester committed the offense at the age of nineteen or seventeen.

If the person is living in their neighborhood, they want to know that. As

I’ve already noted, the legislature has provided the juvenile court with

discretion to remove the juvenile from the registry at the termination of

the dispositional order.

II. Social Science Is an Insufficient Basis for the Majority’s Distinction.

I would be more cautious than the majority in relying on social

science. Whenever we do this, there is a serious danger we will get it

wrong, i.e., that we will do exactly what we accuse the United States

Supreme Court of having done.

5Justice Appel’s dissent in part discusses one state where the supreme court found both adult and juvenile sex offender registration to be punitive. In re C.P., 967 N.E.2d 729, 734 (Ohio 2012). Like the majority, though, the dissent cites no jurisdiction where the courts have found registration to be regulatory for adults and punitive for juveniles. 59

The majority places the most reliance on a 2013 report issued by

the Division of Criminal and Juvenile Justice Planning of the Iowa

Department of Human Rights. Div. of Criminal & Juvenile Justice

Planning, Iowa Dep’t of Human Rights, Iowa Sex Offender Research

Council Report to the Iowa General Assembly (Jan. 2013),

https://humanrights.Iowa.gov /sites/default/files/media/SORC_1-15-

13_Final_Report_%5B1%5D.pdf

[https://web.archive.org/web/20170323233135/https://humanrights.

iowa.gov/sites/default/files/media/SORC_1-15-13_Final_Report[1].pdf].

I have found this division’s reports helpful in the past, but only

when they are quoted and summarized accurately. That isn’t what the

majority has done here.

First, the majority claims that “juvenile sex offenders exhibit

drastically lower recividism rates than their adult counterparts.” The

report doesn’t actually say this. Rather, it states, “Much research has

been conducted on the differences between juvenile and adult sex

offenders, some of which suggests that juveniles exhibit lower recidivism

rates and respond better to sex offender treatment than adults.” Id. at

12 (emphasis added).

Second, the majority includes the following quotation from the

report: “[S]tudies have found extremely low rates of sexual reoffending for

juveniles and that sexual reoffending rates are much lower than non-

sexual re-offenses even among high-risk juveniles committed to

correctional facilities.” The majority, however, omits a key word from the

quotation—“some.” The actual text reads, “Some studies have found

extremely low rates of sexual reoffending for juveniles and that sexual

reoffending rates are much lower than non-sexual re-offenses even 60

among high-risk juveniles committed to correctional facilities.” Id.

(emphasis added) (citations omitted).

Third, according to the majority, the report indicates that multiple

studies have shown no significant difference in reoffense rates between

registered and nonregistered juveniles. This does seem to be a fair

summary of the report. However, the report also seems to reach the

same conclusion about adult registration—i.e., that it does not reduce

subsequent offending. Id. at 13. The majority doesn’t mention this.

Social science has a role in judicial decision-making, but that role

should be very limited when we are deciding where a constitutional

boundary lies. For the most part, the executive and legislative branches

of government are better at evaluating and acting on social science. The

report discussed by the majority was, in fact, authored by the executive

branch of Iowa’s government and intended to be read by the legislative

branch. 6

III. The Majority Opinion Will Have Collateral Consequences.

Lastly, today’s decision that juvenile sex offender registration is

punitive necessarily means that the Ex Post Facto Clause applies. See

U.S. Const. art. I, § 9, cl. 3; Iowa Const. art. I, § 21. Therefore, in Iowa, a juvenile can no longer be subjected to a new or different registration

requirement enacted after his or her underlying conviction. Prosecutors,

6The majority may well be right that juvenile sex offenders are statistically less prone than adult sex offenders to reoffend. According to a more recent survey of studies, “Recidivism rates for juveniles who commit sexual offenses are generally lower than those observed for adult sexual offenders.” Christopher Lobanov-Rostovsky, U.S. Dep’t of Justice, Recidivism of Juveniles Who Commit Sexual Offenses 5 (July 2015), https:// www.smart.gov/pdfs/JuvenileRecidivism.pdf. (Justice Appel’s dissent in part cites this particular compendium.) My point is that we are not equipped to weigh all these studies nor should we be using our interpretation of them as a basis for drawing a constitutional line in the sand. 61

defense lawyers, and trial judges will need to sort through this

consequence of today’s ruling.

For these reasons, I too would affirm the district court and the

court of appeals, but I cannot join the court’s opinion in its entirety.

Waterman and Zager, JJ., join this concurrence in part and