Category Archives: Juvenile Defense

Juvenile Sex Offender Registration

I was working on some issues today regarding a juvenile matter and a question came up about the Sex Offender Registry Act. I think the question about the sex registry had something to do with The Who playing in Florida, but I digress. Back to juveniles, I think that everyone knows that a juvenile will have to register as a sex offender if convicted of certain crimes. Our legislature has told us that there is no difference between adult sex offenders and sex offenders who are children. They have also told us that it doesn’t matter if the offense occurred in another state.  That appears to be simple. If you are a registered sex offender in one state and move to another state, you must register there.

But what if you are not a sex offender in the state that convicted you? Should you still have to register in your new state? That answer was yes according to the S.C. Department of Juvenile Justice in a case called In the Matter of Shaquille O’Neal B., decided earlier this year. The Shaq appealed and he won.

The juvenile was convicted in North Carolina for Indecent Liberties Between Children. He was placed on probation and the probation was transferred to South Carolina. The S.C. Department of Juvenile Justice notified the juvenile that he had to register as a sex offender. He filed a motion in family court to have his name removed from the registry. The family court denied his motion.

On appeal, the state argued that the family court did not have subject matter jurisdiction to consider the juvenile’s request to have his name removed from the Sex Offender Registry and that he should have filed a declaratory judgment in the court of common pleas to challenge the requirement.

That is the procedure for adults. Remember, this is a juvenile case.

The South Carolina Supreme Court (SCSCt) rejected the states argument. The South Carolina Family Courts have jurisdiction of juveniles.  That jurisdiction continues until the juvenile has completed his probation or becomes an adult, whichever comes later. This juvenile was still on probation when he filed his motion with the family court, therefore the family court had jurisdiction to hear the matter.

Regarding the merits of the motion, the SCSCt looked at the South Carolina Sex Offender Registry Act.

In general, persons of any age who are convicted or adjudicated delinquent in South Carolina of an offense enumerated in the Act or who are convicted or adjudicated delinquent for a similar offense in a comparable court in the United States are required to register.

Clearly the Act applies to juveniles. The question is whether the offense is similar. The SCSCt went on to compare the elements of the crime the juvenile was “adjudicated delinquent” of in N.C. to the elements of a “similar” crime in S.C., Lewd Act on a Minor under the age of Sixteen.

The N.C. offense can only be committed between minors. It is a misdemeanor and is punishable by a sentence of up to 45 days incarceration.  Furthermore, it does not require the defendant to register as a sex offender. The S.C. offense, on the other hand, is one that can be committed by an adult. The defendant must register as a sex offender. The crime is a felony and it carries a sentence of up to 15 years in prison.

The S. C. Supreme Court, in a 3-2 opinion, agreed with the juvenile that the two offenses are not substantially similar. Therefore, the juvenile did not have to register and his motion to have his name taken off the registry should have been granted.

The dissent would keep the juvenile registered as a sex offender under the following rationale: If the juvenile committed the act in South Carolina, as opposed to North Carolina, he could have been charged with lewd act with a minor and therefore, he would have to register.

I don’t follow the dissent’s logic. In this case, the juvenile could’ve been charged with something different in N.C., but he wasn’t. The state where the offending conduct took place didn’t see the need to strap the label of sex offender to this juvenile. For that reason alone, I don’t think S.C. should.

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Judge Finds 12-year-old Not Guilty of Murder

A Georgia juvenile court judge found a sixth grader not guilty today of killing his 5-week-old cousin but guilty of two counts of misdemeanor battery in her death.

From the Atlanta Journal-Constitution:

On July 4, the boy was left alone in the car with the baby while her mother, Brittiany Young of Kennesaw, shopped in a Target store. The mother returned to the car 18 minutes later to find her baby limp and unresponsive.  The baby died a day later of blunt force trauma, according to an autopsy.

My philosophy on verdicts is not to speculate on whether someone is guilty or not guilty unless I have seen the entire trial. Even then, my only thoughts are on whether or not the state proved their case. Obviously, I didn’t see any of this trial and therefore, offer no opinion as to the verdict.

I am curious as to what the prosecution was thinking when they charged this 12-year-old with murder. My thoughts are that a child that age probably wouldn’t know how to take care of a baby.

According to the AJC, the prosecution alleged that the boy shook and slammed the baby against a hard surface. The boy told police he was trying to comfort the baby and she fell. The judge said there was no evidence that the boy intended to kill the baby:

“He was scared and didn’t know what to do so he tried everything he could to get the baby to stop crying. He didn’t know what to do and I don’t expect him to know what to do,” the judge said. “In order to get the baby to get quiet, he committed batteries against this baby.”

I understand the judges comments. A few weeks ago an Horry County jury acquitted the adult father of homicide by child abuse in a similar situation involving the death of his baby of roughly the same age.

Sometimes terrible things happen to babies. It’s sad, it is very sad. I can think of nothing more devastating than the death of a baby. But sometimes it’s not murder.

The juvenile’s trial lasted three days. The mothers, two cousins – one lost her baby, the other’s child on trial for murder – obviously in tremendous pain. The judge delivered the verdict immediately after closing arguments. The case is over now except for sentencing the juvenile. Although the trial is over, I doubt that there is closure.  That will probably take a life time.

Sentencing for the juvenile is set for January 6, 2010. The judge said he was inclined to order probation and mandatory counseling. If he had been convicted of murder, his sentence would have been not to exceed his twenty-first birthday.

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Death is Different, but so are Juveniles

The U.S. Supreme Court heard oral arguments yesterday in two separate juvenile cases. Graham v. Florida and Sullivan v. Florida. At issue is whether the Eighth Amendment should prevent life without parole for juveniles convicted of crimes that do not involve murder.

Whether juveniles can be treated as adults and therefore punished accordingly has long been settled starting with Kent. In a nutshell, courts look at the seriousness of the alleged crime and other factors to determine basically if a particular juvenile is more like an adult. If so, then up he is waived. Some courts, it has been argued, stopped the analysis after merely considering the seriousness of the crime.

If a juvenile is arrested for murder, rape or robbery, he is almost certainly going to be waived up to adult court to face an adult sentence. This notion is popular with the general public and therefore with the legislature. In some jurisdictions, the judges who make these decisions are elected by the public and not surprisingly this notion is popular with them.

I remember when South Carolina lowered the age for adults in the mid 1990s. That legislation effectively took judicial oversight out of the equation for the majority of juvenile cases. Law enforcement made the decision whether or not to charge a minor as an adult. There was nothing a judge could do regarding jurisdiction: there is no reverse waiver hearing.

Naturally it followed that adult sentences encompassed all possible sentences.  That is, capital punishment. We now know that is off the table for juveniles. Is the next best thing LWOP? I don’t think so. If death is grossly disproportionate would it not logically follow that so is life?

The government argues that death is different. I agree with this, but it misses the point. Death cases are reviewed by our state Supreme Court individually. The sentence is permissible as a general category but questioned as to a particular individual. From the beginning, juveniles have always been reviewed individually for a possible sentence that is permissible as a general category. Should the general category for waived up juveniles include LWOP becomes the next question. That question has been answered affirmatively for those convicted of murder.

For those defendants, it was determined that they were beyond rehabilitation.  (That decision, more than likely, was made due to the seriousness of the crime.)

Rehabilitation is the benchmark when reviewing a juvenile. Because of their young age it is obvious that there is time for it. It is also obvious that these young people are by definition in there formative years, suffering through growing pains and finding themselves. Eventually, most will grow up. They should not discarded. We should not give up on them. This is why the government does not kill them. Even when they killed someone.

For the same reasons we don’t kill them, we shouldn’t lock them up and throw away the key. Especially if they didn’t kill anyone.

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