Sex Crimes

Another "Sex Offender" in Virginia

Radley Balko at the Agitator has a story from my home state of Virginia about an unusual sex offender. This was Balko's colorful take on the incident and conviction:

Erick Williamson, the Springfield, Virginia man arrested earlier this year for being naked in his own home was convicted of indecent exposure on Friday. The judge sentenced him to 180 days in jail, but suspended the sentence.

I’m still not sure how the conviction holds up, given that the two alleged witnesses had to actually look into Williamson’s house to see Little Erick and the Williamson Twins. So you now have to make sure no one can see into your home in order to be naked in it? How vigilant must you be?

While Balko doesn't give a lot of credit to the stories of the witnesses, under any version of the facts, this hardly seems like a person that should be subject to the federal and state restrictions on sex offenders. However, while the judge in the case couldn't have excused the defendant from registration obligations, he exhibited the sex offender hysteria that would have made it unlikely that he would have done so if given the option:

Williamson denied standing naked in his doorway or front window and said he had no intent to expose himself to anyone. But [Judge] O’Flaherty wasn’t buying it and likened Williamson to bank robber John Dillinger, who also “thought he was doing nothing wrong when he walked into banks and shot them up.”

That's right - the defendant was like John Dillinger.

Amicus Curiae Brief in Carr v. United States

Together, Doug Berman, Wayne Logan, and I authored an amicus brief on behalf of law professors in the case of Carr v. United States. Wherease the petitioner's brief primarily focused on the statutory interpretation issues in the case, our brief was solely concerned with the Ex Post Facto Clause claim. You can find the brief here.

Oral Argument Dates Approaching In Carr, Comstock

SCOTUSblog reports that the Supreme Court has released its schedule for oral arguments this session. You may read the schedule here. Two important sex crimes cases are also coming up on the Court's calendar. United States v. Comstock will be heard on Tuesday, January 12, 2010. Meanwhile, Carr v. United States will be heard on Wednesday, February 24, 2010.

"Putting a Stop to Congressional Overreach"

Reason Magazine has an interesting article supporting the Respondent in the upcoming United States v. Comstock case before the U.S. Supreme Court. The article also mentions the Cato Institute's amicus brief, which we previously blogged about and which is available here. From the article:

Later this term, the U.S. Supreme Court will have a great opportunity to remind Clyburn and his colleagues of those limits when it hears oral arguments in the case of U.S. v. Comstock. At issue is the Adam Walsh Child Protection and Safety Act of 2006, which empowers federal officials to order the indefinite civil commitment of "sexually dangerous" persons who have finished serving a federal sentence, or who are currently in the custody of the attorney general because they were found mentally incompetent to stand trial. In other words, the government isn’t willing to let these people back on the streets.

In its brief to the Supreme Court, the government argues that Congress possesses this authority under the Constitution’s Necessary and Proper Clause, which grants Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

Yet as the text itself clearly specifies, any law passed under the Necessary and Proper Clause must also be tied to a specifically enumerated constitutional power, either one of the "foregoing powers" listed in Article I, Sec. 8, or one of the "other powers vested by this Constitution." As James Madison told the Virginia ratifying convention, the Necessary and Proper Clause "only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause."

So where among the "foregoing Powers, and all other Powers vested by this Constitution" did Congress happen to find an explicitly enumerated power to indefinitely detain "sexually dangerous" prisoners?

The answer is: Nowhere. The Constitution provides no such authority. Indeed, as a superb friend of the court brief filed in the case by Georgetown law professor Randy Barnett makes clear, "However well intentioned Congress may have been, it had no power to legislate for the purpose of protecting the public from dangerous persons.... The Necessary and Proper Clause is not an independent source of Congressional power."

"As it Turns Out, There Are Limits on Congress’s Power"

Ilya Shapiro (of the Cato Institute) has an interesting post discussing the upcoming Supreme Court argument in United States v. Comstock. The Cato Institute has also filed a brief in support of the Respondent Comstock. You may read the brief here. From the post:

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

I think the government's brief tries to take the Necessary and Proper Clause to places it should not go. However, I still think the government is going to win despite itself as the Court will choose a different rationale (with some Necessary and Proper Clause helping out) and uphold the statute. It is nice to see Cato writing a brief in the case as not many organizations are willing to write on behalf of a sex offender.

11th Circuit Upholds SORNA (Again)

The Eleventh Circuit Court of Appeals today released an opinion in a case involving various challenges to SORNA, including under the Commerce and Necessary and Proper Clauses. The constitutional issues were previously decided by the Eleventh Circuit in United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009), but were raised apparently for preservation purposes. In addition to upholding SORNA, the Court found that sex offenders are not exempt from its registration requirements, even when the jurisdiction in which he is required to register has not yet implemented SORNA. You may read the full opinion here.

Interestingly, the Court did discuss the defendant's claim that he had no duty to register under SORNA because he had no notice of the duty to register (relying on Lambert v. California, 355 U.S. 225 (1957)). The Court distinguished Lamberton the ground that the defendant here had "actual knowledge that he had a duty to register in Alabama." The defendant was admittedly given notice of his duty to register, but the notice was unclear as to whether he must register under state law or SORNA. The Court however noted that there were "sufficient circumstances to prompt [the defendant] to have inquired upon his duty to register." Thus, the Court concluded that “notice of a duty to register under state law is sufficient to satisfy the Due Process Clause.”

From WZTV:

A federal appeals court has upheld an aggressive federal program aimed at tracking and monitoring sex offenders.

The ruling by the 11th Circuit Court of Appeals on Thursday marks the first time an appeals court in the circuit has upheld the Adam Walsh Act, a 2006 law that aims to create a national sex offender database and creates stiff penalties for those who fail to register.

It stems from the case of William Eric Brown, who was appealing his 2008 conviction for failing to reregister as a sex offender after moving from North Carolina to Alabama. Brown had argued the new requirements were "impossible" to comply with because he never received notification about them.

The three-judge panel's ruling, however, concluded there was "no due process violation."

SCOTUS Schedules Oral Argument In Comstock For Jan. 2010

Thanks to SCOTUSblog, we see that the Supreme Court has scheduled the oral argument in a list of cases beginning in January 2010, including United State v. Comstock (resource page available here), which is scheduled for oral argument on January 12th. The Comstock case deals with the federal government's power to prolong the imprisonment of persons deemed "sexually dangerous" beyond their completed sentences. You may view the argument calendar here.

New Resource Pages

You might notice off to the left that Sex Crimes now includes resource pages for two significant Supreme Court cases related to the AWA. As with the Kennedy v. Louisiana Resource Page, I hope to keep both the Thomas Carr v. United States and United States v. Comstock Resource Pages up to date with links to materials from around the web. And you can expect significant coverage of both cases when the oral arguments are made and when opinions are entered.

DOJ To Spend More Than $7M on Walsh Act Implementation

The Department of Justice has announced more than $7.3 million in grants for state and local governments to implement, train, maintain, and enhance their sex offender programs. From the press release:

These grants, administered by OJP's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART), break down into three areas of funding: Adam Walsh Act (Title I) implementation, Comprehensive Approaches to Sex Offender Management (CASOM) support, and Dru Sjodin National Sex Offender Public Website (NSOPW) operation.

More than $4.6 million will be used to develop or enhance sex offender registration programs; improve law enforcement and other justice agency information sharing as it relates to sex offender registration and notification; and implement other efforts aimed at furthering the objectives of Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA).

The Adam Walsh Act was signed into law on July 27, 2006 and is designed to protect children and adults from sexual exploitation and violent crime.  The Act also aims to prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other crime victims.  SORNA was enacted to protect the public from convicted sex offenders and offenders against children by establishing a comprehensive national system for the registration and notification to the public of those offenders.

In addition to the $7.3 million, another $985,000 will help maintain, operate and enhance the Dru Sjodin National Sex Offender Public Website (NSOPW) and support the Tribe and Territory Sex Offender Registry System. NSOPW links to state, territory, and tribal sex offender public websites and allows the public to search for registered sex offenders on a national scale. With close to 20 million users and counting, NSOPW is an invaluable resource to the public. 

Sixth Circuit Split Over Retroactive SORNA Application

Today a divided Sixth Circuit panel reversed a sex offender's conviction for failing to register under SORNA. Prof. Berman at Sentencing Law & Policy and Prof. Adler at the Volokh Conspiracy have more. You may read the opinion here. From the opinion:

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.  The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.  The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.  Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required. 

This decision is a pretty significant departure from the majority of courts. It will be interesting to see if the en-banc-happy 6th Circuit will review the decision.