Nothing can make injustice just but mercy. ~Robert Frost
by Kristine Erickson
One of the great injustices of Luke Heimlich’s situation is that he didn’t have the constitutional rights of an adult when his case was adjudicated, yet now the world condemns him to a life sentence. In 1971, in the landmark case of McKeiver v. Pennsylvania, the U.S. Supreme Court ruled that juveniles are not entitled to a trial by jury. The majority’s reasoning was that youth don’t need an adult’s constitutional rights, because they are treated entirely differently under the law.
“Compelling a jury trial might remake the proceeding into a fully adversary process, and effectively end the idealistic prospect of an intimate, informal protective proceeding.” P 403 US 545
“Equating the adjudicative phase of the juvenile proceeding with a criminal trial ignores the aspects of fairness, concern, sympathy, and paternal attention inherent in the juvenile court system.” P 402 US 550
I regard the court’s opinion as “Supreme” irony in light of Luke’s coerced confession followed by the public exposure that happened as a result of a mistake by local law enforcement officers who misinterpreted Oregon’s onerous, convoluted laws governing sex offender registration requirements.
When I started researching Luke’s case, I looked up the Oregon state law the Benton County law enforcement officers misinterpreted. Oregon Revised Statutes (ORS) Chapter 163A Sex Offender Reporting and Classification contains 23,250 words in convoluted sections and subsections with circular references that leave my head spinning. I’m a Stanford graduate, and I don’t mind telling you this chapter of the law is beyond my comprehension. If the legislators wanted to purposely write a law that trapped people into making mistakes, it’s hard to imagine how they could do a better job of it.
One thing I managed to glean from ORS 163A is that Oregon state residents on the sex offender registry are required to update their registration within 10 days after their birthday each year. This makes sense for residents, because they might live at the same address for years, and an annual update helps make sure their information is still current.
ORS 163A.025(4) presumably applied to Luke, because he was an out-of-state college student whose case had been adjudicated in juvenile court. Note that there is no requirement for an out-of-state student to update the registry within 10 days after his birthday, yet the local law enforcement officers cited Luke for failure to do this. A county circuit court judge subsequently dismissed the charge and ordered Luke’s arrest record sealed.
The expungement court order concludes with the following emphatic statement: “Now, therefore, it is hereby ordered, adjudged, and decreed that the Defendant’s arrest record herein should be and the same is hereby set aside pursuant to ORS 137.225, and hereafter the Defendant for all purposes of the law shall be deemed not to have been previously arrested herein.”
The Benton County, Oregon, charge was dismissed May 17, 2017, and the 6/8/17 Mark Katches article in the Oregonian said Danny Moran did a background check on Luke Heimlich May 18. The subsequent expungement court order was issued November 27, 2017. The delay in sealing that record led to all the ensuing trauma suffered by the Heimlich family and countless others.
The diabolical requirement for children to become registered sex offenders is cruel and unusual punishment, not only for the adjudicated juvenile, but for his family as well.
The day after I launched this website, a friend I had lost contact with years ago learned of it via social media. After reading what I’ve written, she sent me this heartbreaking, gut-wrenching message:
“One of my sons inappropriately touched a 4-year-old girl when he was 10 years old. It happened in a few quick minutes in my home while I was there. The shame is soul-crushing. It divides you from everyone. The solitude of bearing it in silence…”
“Our church made us sit in the back row and leave immediately after the service. A Sunday school teacher told the principal of my son’s school, who told his teacher, and the whole small town eventually knew. Everywhere we went, people stared, or at least I thought they did. Paranoia.”
“My son was given court dates and hooked to a sex offender lie detector unit that I had to transport him to many miles away every six months. He attended two years of sex offender treatment where he was forced to sit with much older rapists in group therapy. ”
“His younger siblings were not told, so they didn’t understand why their birthday parties must be held at McDonald’s or in the park. They didn’t know why they could go to friends’ houses to play but no one was allowed to come to theirs. Their friends said to them, ‘My mom says it’s because we don’t know what goes on at your house.’ They asked me, ‘What did that mean?’ I could not answer them.”
“My son wasn’t allowed to join a soccer team unless I attended every single practice and game and drove him to games. He could not ride the bus with the team. He decided not to play soccer.”
“I carried this burden pretty much alone. My husband had left me, and no one in the community wanted to associate with me. Almost every day, I thought about ways to kill myself. After all, it was my fault. I was in the home when it happened.”
“We were told my son’s record would be sealed at 18. Then at 18 we were told the law had changed and his record could be sealed at 21 if we hired a lawyer and pursued it. At 21, we were told my son would have to stay on the sex offender registry for life.”
“My son had registered in our home county but later moved to a different county for work. When he registered there, he learned his home county needed to know he was leaving. They said, ‘No problem. We will notify them.’ They did not. Law enforcement in his home county did an address check, couldn’t find him, and put out a warrant for his arrest. He was told the sentence for failing to update the registry would be two years in federal prison. We hired an attorney, who arranged a plea deal with a fine, and for six months my son was monitored with an ankle bracelet. All of that put him in debt for years.”
“During his time in the ankle bracelet, my son was allowed a limited time to be away from home or work. Driving home from work one day, he got a flat tire. A cop who stopped to ‘help’ noticed the ankle bracelet, put my son in handcuffs, and had his car towed. At the police station, the cops inexplicably decided to remove the ankle bracelet. That cost my son two days off work, a trip across the state, and the price to have another bracelet activated for the remainder of the six month sentence.”
“My son was guilty, but still I know the horror of falling into the hands of the legal system. I wish I’d had the money to hire a good attorney sooner. It might have made a difference. Finally, just before my son turned 30, he was helped by a kind attorney, who managed to get his record sealed and get him off the sex offender registry. By then, he had spent two-thirds of his young life being labeled as a sex offender.”
“One thing I will never forget. About a year after the touching incident, the father of that little girl stopped my son on the way out of church one day and hugged him. I will see that picture in my mind always.”
The father forgives, but “society” demands everlasting condemnation. After telling this tragic story, my friend closed her message by saying, “Please tell Luke Heimlich’s parents my prayers go out to them, and let them know they are not alone.”
We don’t know how many of our friends, and perhaps even family, have been traumatized like this. People are too ashamed to tell us. The cruel injustice of putting children on the sex offender registry is being perpetrated in my name, it is being perpetrated in your name, and only we can stop it.
Catholic University Law Review 2009
The Ultimate Disillusionment: The Need for Jury Trials in Juvenile Adjudications
“The plurality in McKeiver stressed, that because the juvenile proceedings were designed to rehabilitate rather than punish, the juvenile did not need rights to shelter him from ‘the court’s desire to protect [him].'”
“Furthermore, proponents traditionally advocated that constitutional rights were associated with ‘words like arrest, prosecution, conviction, and punishment,’ and that because the juvenile system made use of an entirely different vocabulary from that of the adult criminal justice system, constitutional rights afforded to adults did not apply in juvenile proceedings.”
“It is of vital importance to recognize that juries can provide a clean slate in a way that may be difficult for juvenile court judges. Juries are more likely to acquit on evidence that does not satisfy the standard of beyond a reasonable doubt because they have no vested interest in punishing a particular juvenile, they are not ‘easily vulnerable to prosecutorial pressures to adjudicate delinquents,’ and they have an ‘overall tendency to acquit more frequently than judges.'”
Rutgers Law Review 2010 article by Allison D. Redlich, Ph.D.
The Susceptibility of Juveniles to False Confessions and False Guilty Pleas
“The overwhelming majority (97%-99%) of convictions in adult and juvenile courts are the result of plea arrangements. It is estimated that every two seconds a defendant pleads guilty.”
“In preliminary research, Redlich and Norris found statewide tender-of-plea forms for adult defendants to have an average reading grade level of 8.6 (range = grade 4.9 to 11.9), whereas statewide forms specific for juvenile defendants had an even higher average reading level at grade 10.0 (range = 6.4 to 14.8).”
“Although legally the decision to plead guilty is ultimately the defendant’s, are juvenile defendants making decisions autonomously? To what degree do juveniles have to understand these documents on their own? Do parents and attorneys advise juvenile defendants, and if advice is given, is it effectual? There are several reasons to theorize that advice is non-existent, limited, or based on incorrect understanding.”
“Drizin and Luloff state problems such as ‘poor investigation, infrequent use of motions, high caseloads, over-reliance on pleas, a juvenile court culture of wanting to ‘help’ juveniles, and a general lack of training among attorneys on youth and adolescents.’ Finally, even with the assistance of effective counsel, it is questionable whether juveniles truly understand and participate in their cases, and follow the advice of or listen to counsel. A small pilot study of juvenile defendants and their attorneys, concluded that almost all of the youths were viewed as ‘too acquiescent, passive, or naïve—compared to most adults—in their approach to decisions about pleas.”
“Many traits of adolescence, such as a foreshortened sense of future, impulsiveness, and other defining characteristics of youth that help to explain why juveniles falsely confess to police, will also be present for juveniles deciding whether to take a plea.”
Amicus Curiae brief submitted 3/26/18 to the U.S. Supreme Court in the Dassey v. Dittman case on behalf of the American Psychological Association, American Psychiatric Association, National Association of Social Workers, and American Academy of Psychiatry and Law
“The risk of involuntary false confessions is of particular concern in cases involving juveniles. Studies based on real-world and experimental data demonstrate conclusively that juveniles—because they lack mature judgment and are especially vulnerable to pressure—are far more likely than adults to make false confessions.”
“Psychological research establishes conclusively that juveniles are far more likely than adults to falsely confess. A survey of 873 exoneration cases from 1989 through 2012 found that roughly 15% of exonerees had falsely confessed, and that percentage jumped to 42% for juveniles—a nearly three-fold increase.”
“Juveniles’ strong preference for immediate benefit—even at serious long-term cost—contributes to their tendency to falsely confess. It is well understood that ‘compliant [i.e., coerced] false confessions’ generally result from a suspect’s desire ‘to escape a stressful situation, avoid punishment, or gain a promised or implied reward,’ usually based on the belief ‘that the short-term benefits of confession relative to denial outweigh the long-term costs.”
“The authors of a seminal false confessions study observed that ‘one of the most common reasons [for confessing] cited by teenage false confessors is the belief that by confessing, they would be able to go home.”
TEDx Talk by Lindsay Malloy, Center for Children and Families at FIU
What Leads to Juvenile False Confessions?
Reforming the Registry: The best ideas for fixing sex offender laws
“A report by the Council of State Governments, a nonpartisan organization funded in part by the states, noted that ‘common myths about sex offenders continue to influence laws.’ The report concluded that ‘there is little empirical proof that sex offender registries and notification make communities safer.’ The California Sex Offender Management Board, which includes a district attorney, police officers, and corrections officials, went even further earlier this year, saying that ‘the registry has, in some ways, become counterproductive to improving public safety.'”
“Yet, despite these inroads, the political will to rein in sex offender registries is rare, if not absent. For example, the 1,500-plus sex offender bills introduced by state legislators in 2007 and 2008 reflected a ‘clear trend’ toward harsher penalties, according to another report by the Council of State Governments. Efforts in the opposite direction have often been doomed. Take Missouri. State lawmakers passed a bill to remove juvenile offenders (those who committed sex offenses when they were 18 or younger) from the state registry’s website and to allow them to petition for removal from police department sex offender lists. Remarkably, the bill passed 153-0 in the state House and 28-4 in the Senate. And then Gov. Jay Nixon vetoed it.”
“To reformers, the failure to pass meaningful reforms shows how hard it remains for lawmakers to resist public demands to crack down on a group that is simply reviled. ‘We want to vilify these people, because they’re easy to hate,’ Patty Wetterling, whose son Jacob was kidnapped at age 11 and remains missing nearly 25 years later, told me in an interview last month.”
Slate 2015 interview with Emily Horowitz, author of Protecting Our Kids?: How Sex Offender Laws Are Failing Us
California’s Sane New Approach to Sex Offenders
Q: Why did you write a book about the sex offender registry?
A: When I saw the research on the registry I was really shocked at how pointless it is. And it was shocking because usually, when you research something, there’s ambiguity—there are some good things and there are some bad things. But with the registry, there’s really no research that shows it’s effective at all.
Q: How do the studies you read show the registry’s effectiveness, or lack thereof?
A: If the registry was effective, you’d want to see that, after 1996, when Megan’s Law was implemented, there was a big drop in sex offense cases. But the rates didn’t change, or they’d already started going down before Megan’s Law was implemented. Rates of sexual abuse neither increased nor decreased as a result of the registry.
Q: If there’s all this research showing that the sex offender registry doesn’t drive down rates of sexual abuse, why has it survived all these years?
A: Because it’s politically really popular. And because it’s political suicide to say you don’t want the registry.
National Affairs 2016 article by Eli Lehrer
Rethinking Sex-Offender Registries
“But the presence of non-violent and non-threatening juveniles on sex-offender registries contributes to registry “clutter” that makes it difficult for police and social workers to monitor the truly dangerous sex offenders. Phillip Garrido, who kidnapped and held Jaycee Dugard in his backyard for 18 years and abused her repeatedly, is a good example of someone who slipped through the cracks. He was on a sex-offender registry for prior incidents of molestation and kidnapping. His home was visited by parole officers and social workers numerous times. But, overtaxed by the need to monitor California’s more than 83,000 registered sex offenders, officials never performed the thorough search of his house that would have located Dugard.”
“Making the registries more effective should start with reducing the number of offenders listed. Removing those who do not pose any particular public danger would both remedy the injustices done to them and improve public officials’ ability to monitor those who remain. Two groups in particular deserve speedy release from the registries: those convicted of minor, sometimes non-sexual offenses and those whose convictions were handed down by juvenile courts.”
“For many of the same reasons, people convicted in juvenile court should, as a class, be removed from registries; their continued presence is perverse and undermines the purpose of the juvenile justice system.”
“Laws that fail to take these obvious realities into account impose huge consequences on juveniles convicted of sex offenses: the threat of being banned from living with their own siblings, being forced into foster care, and expulsion from their high schools (the same schools doing such a poor job of ensuring that pedophiles don’t get hired). None of these collateral consequences does any good for society, for the offenders, or for their victims.”
“Moreover, the long-lasting, sometimes lifelong, nature of sex-offender registration runs counter to the purpose of the juvenile justice system. Juvenile courts are intended primarily as therapeutic and rehabilitative mechanisms. They have looser rules of evidence than adult courts; they maintain far fewer public records; and, at least in theory, they hand out sanctions based on the ‘best interest’ of the accused, rather than a desire to punish. Only a few states allow jury trials in juvenile court, and even then they are quite rare.”
“If prosecutors or police believe that a juvenile is so dangerous that he merits long-term registration, they ought to avail themselves of procedures to try him in an adult court. Any other standard undermines the very idea of maintaining a distinct system for younger offenders.”
“Registries rarely report the age at which their registrants were convicted. What data do exist suggest that those convicted as juveniles make up as much as a third of registered offenders in the 40 states that have some form of juvenile registration.”
“Whatever the ultimate figure, it would be easy to reduce the size and scope of sex-offender registries — and the hardships imposed on those who have committed only minor offenses — while actually increasing public safety.”
“More than two decades after her initial success in establishing Minnesota’s registry, Patty Wetterling — now a political activist who has run twice for Congress — expresses second thoughts about the registries she fought to establish. While she still supports the idea of the registries, Wetterling thinks they have gone too far and should drop juveniles and many other categories of offenders.”
On 8/2/2018, I updated this page to correct the timing of the court order that expunged Luke’s Benton County, Oregon, record. The charge was dismissed on May 17, 2017, but I have learned the county circuit court didn’t order the record sealed until six months later, on November 27, 2017.