Shocking Concession Comes out of the Government in Eighth Circuit SORNA Case

I have been aghast that district courts have allowed prosecutions under SORNA based upon interstate travel that occurred before the passage of the Act. I began my forthcoming Federal Sentencing Reporter outlining one such egregious case:

In 1992, Glen Aubrey Pitts was convicted in Virginia of two counts of oral sodomy and two counts of indecent liberties with a minor under his control.  Upon release, Pitts was required by state law to register as a sex offender and did so until October of 1998. Sometime between October 1998 and November 2001, Pitts moved from Virginia to Louisiana.  Pitts never registered, as was required, in Louisiana. 
In 2006, several years after Pitts moved to Louisiana, on the twenty-fifth anniversary of the abduction of Adam Walsh, President Bush signed into law the Adam Walsh Child Protection and Safety Act (“AWA”)....
Pitts challenged the indictment against him...  The alleged justification for the application of federal, as opposed to state, law was the interstate move by Pitts made sometime between 1998 and 2001, six years before his indictment for failing to register.... However, Pitts, like scores of other defendants, failed to have his indictment dismissed...

Indeed, while there have been a few loses by the government in these cases, the majority of district courts have held that interstate travel before SORNA as the sole basis for federal jurisdiction presents no obstacle to prosecution. While not specifically addressing the same fact pattern, Judge Posner's opinion in U.S. v. Dixon stated that there is no Ex Post Facto problem so long as one element of the crime is committed after the passage of the Act (which is easy to allege under SORNA since most courts treat the crime of failing to register as a continuous offense). So, against that backdrop, the concession of a recent government attorney before the Eighth Circuit in U.S. v. Hullen is stunning: 

The government concedes that "pre-SORNA interstate travel cannot violate SORNA" and that it did not have evidence that either defendant had traveled interstate after the effective date of the statute. The Criminal Division of the Department of Justice has instructed the prosecution to concede this issue on appeal. For these reasons, we reverse the order of the district court and remand for further proceedings consistent with this opinion.

This effectively ends all prosecutions based upon allegations of interstate travel before the passage of SORNA. I'm glad the government has finally come to its senses on this issue. I just think it is a shame that more district courts didn't force that conclusion earlier. It really is a black mark on those courts that allowed such prosecutions to proceed.

Maybe I'm being too suspicious, but I wonder if this is a strategic move by the government to strengthen its position against Commerce Clause claims. In making this concession, the government is only giving up a few prosecutions (which would only diminish over time). The reason I started my article above with the Pitts case is that I felt it showed the weakness of the government position in regards to the Commerce Clause. Allegations based upon travel before the passage of the Act demonstrated quite clearly that there was no temporal connection required under the jurisdictional limitation of 2250(a)(2). The Pitts case showed that travel at least five years earlier was the basis for an indictment that the federal government should have never been involved with. 

With the new concession, however, all SORNA cases are likely to all involve interstate travel within one year of the alleged failure to register. Thus, it appears that the interstate travel is proximate to the failure to register. This will likely make it easier to defeat Commerce Clause challenges. After Comstock and the various district court opinions dismissing indictments under SORNA for jurisdictional reasons, the government may have been worried. So, it sacrificed a few prosecutions to stave off the risk that the entire failure to register statute would be struck down.

Comments

[Daniel]

I had a different reaction: I wonder if this simply has to do with a change in administrations.

I doubt it. Just looking for some of that fabled hope.

[Corey Rayburn Yung]

I'm assuming the argument and concession were before the administration change, but I haven't verified that.

Corey

[jjoe]

From the government's brief, filed on Sept. 22, 2008:

"The language in May strongly indicates that pre-SORNA interstate travel cannot violate SORNA. 535 F.3d at 920. Based on May, the undersigned has received guidance from the Criminal Division of the United
States Department of Justice that the government’s brief should adopt the position that in this Circuit, the pre-SORNA travel of Hulen and possibly of
Torres cannot be punished as violations of 18 U.S.C. § 2250."

[Joseph Miller]

Of course this an effort for the federal government to have more influence and control within the state level government by using the Interstate Commerce Clause. Political strategists are no dummies. I find it very hard to believe that legislators were or are completely blind to the inadequacies and/or ineffectiveness of the Adam Walsh Act or other laws like Megan's Law. By utilizing the sex offender population and the public's fearful hysteria they have managed to infringe upon a states sovereignty from the federal government's influence and have planted a seed for future control of state legislature. It is not difficult to recognize why the federal government used the sex offender population, as it has been stated many times over that the offenders are the worst of the worst and deserve to have there rights stripped. The public perceives this as simply punishing a sex offender and ensuring public safety. The bigger picture is the federal government is gaining more control, which historically and constitutionally unacceptable.

[constitutionalfights]

Is there any way someone can state in clear simple language this Interstate Commerce rule as it applies to sex offender registration? The only point I can gather is that is being used to prosecute sex offenders who fail to register. But what does that have to do with commerce? (other than if one sends or receives child pornography, takes a minor across state lines, or commits a crime during the time).

I would appreciate it, greatly.
Constitutionalfights.org

[Valerie Parkhurst]

Florida has more sex offenders than other states for no other reason than the weather. Sex offenders have websites to teach offenders how to move into other states with false information. States should have the capabilities to barr (convicted sex offenders) from establishing residence in their state. Why does my state (Florida) have to house, feed, provide oversight and ultimately try to be forced to lower Residency restrictions to accomadate a guy who committted his crime in another state? Add on top of those exempted from deportation, and we are drowning in sex offenders. Which in the big picture? Is unfair to everyone involved..