Juvenile Sex Offender Registration and the Eighth Amendment

Via the CrimProf Blog, I learned about Catherine Carpenter's article, Against Juvenile Sex Offender Registration.  Here is the (rather lengthy) abstract:

Imagine if you were held accountable the rest of your life for something you did as a child? 

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. 

No matter the constitutionality of adult sex offender registration – and on that point, there is debate – this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent. 

Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders. 

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

Carpenter does well to draw attention to this issue, and I think that it is an important problem that people should know about.  Nevertheless, I think that the article tries to do too much, and ends up giving short shrift to the problem of whether sex offender registration constitutes punishment in the first place.  

Carpenter is fighting an uphill battle from the beginning, since most courts addressing the issue of sex offender registration find that registration is a non-punitive measure that is in place for purposes of keeping track of those convicted of sex offenses.  While I think that this approach overlooks the stigma associated with this sort of registration, Carpenter needs to do more to establish that registration is punishment before she gets into the Eighth Amendment analysis.  As the paper stands, there is some analysis on the punishment, but it is buried underneath the Eighth Amendment arguments - all of which assume the existence of punishment.

That said, Carpenter's discussion of this issue is both eye-opening and disturbing - and she points to a problem that courts or legislators should address (though from a political view, this is highly unlikely).  If the Carpenter change's the paper to present a better-organized, thorough argument as to why sex offender registration is punishment, I think that the overall argument will be greatly strengthened.