Sentencing Law and Policy has a copy of the opinion in US v. Madera, a case out of the Middle District of Florida. Madera was charged with "failing to register as a sex offender in violation of 18 U.S.C. 2250(a) and the Walsh Act." Title I of The Walsh Act set up a national registry for sex offenders and recently went into effect.
On November 17, 2005, Madera was convicted of sexual abuse in the 2nd degree, a misdemeanor, in New York. His sentence was six years of probation. Madera subsequently moved to Florida, but allegedly did not register in that state as a sex offender. On October 23, 2006, Madera was arrested for failing to register in violation of 18 U.S.C. 2250(a). He was indicted by grand jury. Madera filed a motion to dismiss arguing that the Walsh Act was unconstitutional. Madera made four major arguments:
Defendant alleges that SORNA's registration requirements as well as 18 U.S.C. 2250, are unconstitutional under the following provisions of the United States Constitution: (1) the Non-Delegation Doctrine, Art. I, 1; (2) the Ex Post Facto Clause. Art I, 9, cl. 3; (3) the Due Process Clause of the Fifth Amendment; and (4) the Commerce Clause. Art. I, 8, cl. 3.
The district court found that the Walsh Act was constitutional and rejected all of Madera's challenges. Madera's first claim concerned the retroactivity of the statute. Madera argued that the Non-Delegation Doctrine prohibits Congress from delegating the decision to apply a statute retroactively to the Attorney General. I have little expertise concerning the law of non-delegation so I won't comment on the court's reasoning on the issue.
Madera's second argument, regarding the Ex Post Facto Clause, also challenged the statute's retroactive application. Given that every highest court addressing other restrictions on sex offenders (including state registration requirements and residency restrictions) has found no Ex Post Facto violation, the court seems to be on solid ground in allowing retroactive application of registry requirements. A distinction could be drawn in this case because the defendant is actually being charged with a crime. However, the residency restriction cases also reviewed statutes that carried significant criminal penalties. Thus, I think retroactive application of an obstensibly "regulatory" rule that carries "punitive" results is likely to be found permissible by courts. I would be interested if anyone can find case law to the contrary on this point.
The third challenge by Madera, that the Walsh Act violated his due process rights, seems similarly troubled by prior case law. Registration requirements have been upheld when there was no hearing or review of the decision to require registration. The Walsh Act is similar to other statutes in this regard. As a result, the court's reasoning seems entirely consistent with prior case law.
The more interesting legal argument, in my opinion, is Madera's fourth challenge. Madera argues that the Walsh Act violates the Commerce Clause. The district court relies exclusively on Gonzales v. Raich, 541 U.S. 1 (2005) the United States Supreme Court case about federal preemption of state attempts to allow marijuana use for medicinal purposes. Raich is very forgiving in allowing the federal government authority to regulate matters which only tangentially affect interstate commerce.
However, the district court's reasoning in this area seems problematic to me. By only looking at Raich, the district court ignores the reasoning in United States v. Morrison, 529 U.S. 598 (2000), (where the Court struck down part of the Violence Against Women Act on Commerce Clause grounds) and United States v. Lopez, 514 U.S. 549 (1995), (where the Court struck down the Gun-Free School Zones Act of 1990 on Commerce Clause grounds).
While it is true that Morrison and Lopez are of questionable validity since Raich, those cases have stronger similarities to the facts in Madera. In Raich, the Court distinguished its holding from Morrison and Lopez because marijuana is a crop in the stream of commerce between states. The Supreme Court in Raich cited an opinion about other agricultural regulations to support its rejection of the Commerce Clause challenge to federal marijuana laws. However, it is unclear what the "commerce" is at issue in the sex offender context. The Court in Morrison explicitly rejected general concerns about public safety as constituting "interstate commerce," yet that is the language the court in Madera uses. Morrison also dealt with whether the federal government could create civil remedies for rape and crimes of sexual violence, something very similar to the use of registries of sex offenders. The district court gives a very conclusory opinion regarding the Commerce Clause challenge that I think underestimates its strength. If a very expansive reading of Raich ultimately prevails, then the district court may be "right" in the long run, but I think to ignore Morrison and Lopez in its analysis puts the opinion on shaky ground.