Juvenile sex offender laws struck down — for now

Sun, Apr 6, 2008 (2 a.m.)

Juvenile sex offender legislation

If Judge William Voy’s courtroom were the major leagues, Friday’s constitutional challenge case would be an exhibition game.

That’s how the judge explained it.

It would be an exhibition game because the controversy in question — the constitutionality of Nevada’s new sex offender laws as they apply to juveniles — will really be played out on the field, to carry the metaphor, of Nevada’s Supreme Court.

But Thursday morning in the Family Court building, in extra innings after months of court filings and legal back and forth, Voy was at bat. He ruled the juvenile sex offender laws Nevada adopted with the passage of Assembly Bill 579 are unconstitutional.

In other words: Thwack! It’s out of the park!

It was a farm league victory for the juvenile public defender’s office and the American Civil Liberties Union of Nevada, which are already cleaning their cleats for the deciding game in Carson City.

The laws being challenged in AB 579 are based on the federal Adam Walsh Child Protection and Safety Act, signed into law by President Bush in July 2006. The federal law lumps teenage sex offenders 14 and older in with adults when it comes to certain punishments and requires that many of those juvenile offenders be included in Internet sex offender registries. The state’s new laws would also be applied retroactively, meaning anyone who was at least 14 years old and convicted of a crime against a child after July 1, 1956, is subject to the new regulations.

Susan Roske, deputy public defender, argued the state laws were unconstitutional for a number of reasons, including that such punishments are cruel and unusual and would relegate juvenile sex offenders to a lifetime of public humiliation counterproductive to rehabilitation.

Voy rejected this argument. He also rejected Roske’s argument that the court cannot change a juvenile offender’s sentence retroactively. In fact, he rejected all of Roske’s arguments but one: The new laws, Voy agreed, are unconstitutional because they violate due process.

This reasoning, for anyone who’s not an attorney, is as complicated as a 4-5-3 double play to someone who doesn’t understand baseball.

Here it is in slow-mo: Under the new laws, 14-year-old sex offenders can be punished as adults. But a child who is 13 years, 11 months and 29 days can’t. This age distinction, Voy noted, is arbitrary. Without a rational reason for the age cap, the law is a violation of due process, because part of due process is the right to rational law.

Were it not for Voy’s determination, the laws would go into effect July 1. Maggie McCletchie, ACLU of Nevada staff attorney, expects the laws will not be enforced until the Supreme Court hears the appeals. The state’s high court is not expected to rule on the case before July 1.

The courtroom spectators, the few convicted juvenile sex offenders Roske invited to watch the proceedings alongside interested attorneys, all expected this outcome. Even Jonathan VanBoskerck, deputy district attorney, knew coming in that he would probably lose. The culture of the juvenile courts, he said, generally sees teenage sex offenders as children with mental health issues rather than culpable criminals. The state Supreme Court, he can only hope, is distant enough from the issue to consider the laws’ constitutionality alone.

When Voy was done discussing his ruling and court was called to a recess, Roske was surrounded by fellow public defenders who celebrated quietly, well aware of the work that’s still ahead.

Roske said it was just the first game of a long season.

Discussion: 5 comments so far…

By mgkrebsii

4/6/08 at 9:53 a.m.

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Hmmm. Someone 18 can vote but, someone 17 years, 11 months and 29 days cannot. That's an irrational law!

Voy is full of it. The most relevant reason for unconstitutionality is the ex post facto nature of law.

"The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

An ex post facto law is a law passed after the occurrence of an event or action which retrospectively changes the legal consequences of the event or action." www.lectlaw.com
By RobtJones

4/6/08 at 1:06 p.m.

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I agree with Krebs.

Where did these lawyers go to school? Has it been too long (1798) since this important aspect of the law has been confirmed? I don't think so.

Ex post facto is an important BASIC tenant of constitutional law.

Susan Roske deserves to be fired for not making ex post facto an issue. (She will before the Supreme Court where they'll tell her: Too late counselor. You should have raised this at the district court. Learn appellate procedures, constitutional law, then go back to the district court with a NEW case and NEW clients---- at taxpayers expense, of course. I repeat: She deserves to be fired!)
By TimP

4/7/08 at 10:48 a.m.

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While I understand Krebs thinking that this is an Ex post facto law, the US Supreme Court has already ruled that thes types of laws are NOT Ex post facto. In Smith vs Alaska the Sup. Court did so rule and added that as long as these laws do not stop an ex offender from living or working were they wanted to then the Sex Offender laws were protective in nature only and not Ex Post Facto laws. Now having said that I think that ALL SEX Offenders should pay for testing that showes how much of a danger they are to the public and then the police can watch those that are the most likely to re-offend. And those should be the only criminals on a sex offender registry.
By ojovigilante

4/7/08 at 3:27 p.m.

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Three cheers for Judge Voy. The hysteria surrounding this misguided legislation needs to subside. It might be worth noting that the legal beagles above did not actually read the pleadings or they would know that ALL relevant issues including ex post facto were raised. Get your facts straight Mr Robert Jones, before you want to have someone's head delivered on a platter.
By melody187

5/14/08 at 7:47 p.m.

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I know all about how hard it is to deal with life as a sex offender. When I was 10 years old I was playing "doctor" with a friend and her mom happend to walk in and see. She decided to call the police and I was arested and had to sit in jail untill I was 11 then I was old enough for the state of washington to charge me with a sex offence. Now I'm not in any way saying that what I did wasn't wrong but for a state to charge an 11 year old with rape? It was not in any way violent and there was NO force at all. But I went to a juvienile prison and released at age 14. I have to register when I move and as far as I know that is for the rest of my life.