Cruel and Unusual: The Case Against Registering Kids as Sex Offenders

By Nicole I. Pittman and Riya Saha Shah

Adolescents are unfinished products, works-in-progress toward the adult character they have not yet formed. . . . Predicting what they will become is chancy, speculative, unreliable.

— Brief for the Petitioner, Miller v. Alabama

America’s kids have racked up some big wins in the nation’s most august court. The victory lap began in 2005 when the Supreme Court banned the death penalty for juveniles. (Roper v. Simons, 543 U.S. 551 (2005).) In 2010, the Court barred mandatory life without parole for juveniles, except those convicted of murder. (Graham v. Florida, 560 U.S. 48 (2010).) Two years later, the Court eliminated this exclusion, reasoning that a mandatory sentence of life in prison without the possibility of release violates juveniles’ constitutional protections against “cruel and unusual punishment.” (Miller v. Alabama, 132 S. Ct. 2455 (2012).)

The justices’ decisions in these and other cases were based in large part on a body of research that has established important cognitive and other differences between children and adults, especially in the areas of reasoning and impulse control. (See, e.g., Kayla Pope et al., Developmental Neuroscience and the Courts: How Science Is Influencing the Disposition of Juvenile Offenders, 51 J. Am. Acad. Child & Adolescent Psychiatry 341 (2012).) These studies provide a sound empirical basis for concluding that juveniles are less blameworthy for their criminal conduct than adults, and thus less deserving of the harshest punishments.

The decisions reflect the commonsense understanding, supported by science, that children are works in progress. In the decision regarding the application of the death penalty, the majority of justices reasoned that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” (Roper, 543 U.S. at 570.) Collectively, these rulings confirm that laws must be calibrated to the reality that children are fundamentally different from adults, not miniature versions of them.

Although the country has moved forward in understanding children’s culpability when it comes to sentencing juvenile offenders, it has moved in the opposite direction in responding to children who have engaged in sexual misconduct. The federal government along with 39 states register these children as sex offenders. Lists perceived as necessary to track dangerous people who preyed on children now include more than 200,000 people whose only offense was committed when they were children, some as young as eight years old. Many of their actions constitute normative or experiential behaviors, such as “playing doctor,” streaking, sexting, and teenage romances in which one or both parties are under the legal age of consent. Serious offenses are much less common and not predictive of future behavior.

LONG-TERM IMPACT ON JUVENILES AND THEIR FAMILIES

Jason was 14 years old and living in a foster home in Richmond, California, when he met his first girlfriend, a 13-year-old neighbor named Tianna. A few months into their relationship, Tianna’s mother discovered them engaging in oral sex. It was consensual, but the law in California treats any sexual activity with someone under age 14 as child molestation. Jason was prosecuted in juvenile court, and before he was even old enough to drive, his name and address were added to the California Sex Offender Registry.

Brandon was only 11 years old when he was registered as a sex offender—all because of a silly game among kids home alone. In a twist on musical chairs, Brandon’s 13-year-old sister turned off the lights and told everyone to undress and then try to quickly redress before she turned the lights back on. Brandon, always the clown, thought it would be funny if he left his clothes off. When the lights came on, he was standing there naked. Everyone laughed, then he got dressed and they all ate pizza. But when a seven-year-old girl who had taken part in the game told her mother she had seen Brandon’s penis, the police got involved and charged Brandon with indecent exposure. He was adjudicated delinquent in a Texas juvenile court, and from then on known as a sex offender.

In states like California and Texas where children like Jason and Brandon are required to register for life—and in states where people’s names are published and proliferate online, never to be erased—sex offender registration is a life sentence, served not in prison but on the fringes of society. Even kids who eventually are removed from registries suffer incredibly in the intervening years. A Human Rights Watch report based on more than 500 interviews with youth listed on sex offender registries found almost all of them reported severe mental health problems. (Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US, Hum. Rts. Watch (May 1, 2013), http://tinyurl.com/qc66ykz.)

As a sex offender in the state of Texas, Brandon wasn’t then and isn’t now allowed to live in a “child safety zone,” areas marked by invisible fences that extend thousands of feet around schools, parks, movie theaters, and any place children might gather. Brandon also cannot live with anyone under the age of 14, which meant his own home was off-limits once he was adjudicated delinquent for a sex offense. Too young to incarcerate, the judge placed Brandon with a foster family where he was abused and later ran away. Eventually, he ended up in a juvenile facility where he stayed until he was 17 years old.

Jason is now 34 years old. Despite earning a college degree, he cannot find steady employment, is often homeless, and suffers from acute depression. As a young adult, Brandon also was frequently homeless. Unable to provide a permanent address for the sex offender registry, he was convicted three times for failure to register, and each time sentenced to prison. After his third term in prison, he became increasingly depressed. Unable to find work, he was arrested within a year for theft. Calling Brandon a “career criminal,” the judge sentenced him to 15 years to life. Now 31 years old, Brandon has spent the majority of his life behind bars.

It is remarkable that this fate befalls children whose cases are handled by juvenile courts, within a system founded on the ideal of rehabilitation. In theory, juvenile justice is all about second chances—holding children accountable and supporting them in ways that help them grow into responsible, law-abiding adults. Registering kids as sex offenders does just the opposite. Many of these children are themselves victims of abuse or neglect, or have experienced other types of trauma. Instead of addressing their underlying issues and helping them to heal, registration triggers endless shaming and social alienation— the worst possible response to a troubled child.

Laws intended to protect kids essentially robbed Jason and Brandon of their childhood and cast an endless shadow over their future. And their stories are not unusual. The harms, social alienation, and life obstacles they experienced are typical. One in five kids raised on registries attempt suicide at some point in their lives; many succeed.

In situations where the survivor and the person who caused harm are siblings, which they often are, everyone suffers. Entire families have been targets of vigilante violence. A woman who was inappropriately touched by her brother when they were both children later said, “What people don’t realize is that a child on the registry is a family on the registry and a victim on the registry.”

Click here to read the rest of this article on American Bar Association’s Criminal Justice magazine.