Sex Crimes

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.

Justice Department's SMART Case Law Update #29

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #29:

U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009)

Moran had been convicted of a state-level sex offense against a 4 year-old girl in 1994. He was convicted of being a felon in possession of a firearm, and properly ordered to register as a sex offender as a condition of supervised release.

U.S. v. Pendleton, 2009 U.S. Dist. LEXIS 85347 (D. Del. Sept. 18, 2009)

Pendleton was convicted of two sex offenses: one in New Jersey in 1992, and one in Germany in 2006. He was deported to the United States as a result of his conviction in Germany and transferred his probation supervision to the State of Delaware, where he listed a particular ‘mail drop’ address as his resident address. He did not live at that address. With an interesting discussion of the authority of the SORNA final guidelines, the court held that “where a defendant uses an address as a mail drop and repeatedly holds that address out as his legal address, the defendant ‘resides’ at that address for the purposes of 42 U.S.C. §16913(a).”

Ex Parte Harbin, 2009 Tex. Crim. App. LEXIS 1206 (Sept. 16, 2009)

Harbin was convicted of four sex offenses in California, in 1988, 1994, 1995 and 1996. The Texas court held his two convictions for annoying or molesting a child (1994 & 1996) do not require registration in Texas. His other two convictions (lewd and lascivious acts with a child and sexual battery) will require registration.

Kansas v. Coman, 2009 Kan. App. LEXIS 823 (Aug. 28, 2009) (previously discussed here)

Even though bestiality was not an offense specifically listed as requiring registration, it was properly captured under Kansas’ catch-all provision as a “sexually motivated” offense requiring registration.

People v. Luansing, 176 Cal. App. 4th 676 (Aug. 11, 2009)

Where Luansing was convicted of oral copulation with a minor, it was a denial of equal protection to mandate sex offender registration, based on the decision in People v. Hofsheier, 129 P.3d 29 (2006).

People v. Nichols, 176 Cal. App. 4th 428 (2009)

Nichols was required to register as a sex offender and failed to update his resident address information, absconded from parole supervision, and his whereabouts were unknown for 8 months. He was appropriately sentenced to a three-strikes sentence, and it did not violate the 8th Amendment of the U.S. Constitution.

SCOTUS Grants Cert. In Carr v. United States

This week, the U.S. Supreme Court granted certiorari in Carr v. United States (previously blogged about here and here), which raises several constitutional challenges to the Sex Offender Registration and Notification Act (SORNA). You may view the full order list here. From SCOTUSblog:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

• Opinion below (7^th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

DOJ: Two Jurisdictions in Compliance With Adam Walsh Act

The Department of Justice issued a press release today announcing the first two jurisdictions to implement the Sex Offender Registration and Notification Act (SORNA), part of the Adam Walsh Act.  The two jurisdictions? Ohio and the Confederated Tribes of the Umatilla Indian Reservation. From the press release:

"We are pleased to announce the first two jurisdictions to substantially implement this important legislation," said Attorney General Eric Holder. "We are committed to working with the remaining states, tribes and territories with their implementation efforts."

The State of Ohio and the Confederated Tribes of the Umatilla Indian Reservation (located in the state of Oregon) have been working diligently with the Office of Justice Programs' Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) to achieve this milestone, according to officials from the SMART Office.

"This marks an important achievement for Ohio's families and children," said Ohio Attorney General Richard Cordray. "Effective tracking and monitoring of sex offenders equips parents with the information they need to keep their children safe. Taking deliberate steps to provide a common foundation for all the registration systems throughout the United States allows our families to make the most effective use of the information those systems provide."

While most states have had sex offender registry systems in place for more than a decade, the tribal communities only became registration jurisdictions after the passage of the Adam Walsh Act. The Umatilla Indian Reservation has made significant strides in substantially implementing the registration and notification systems in a relatively short time frame.

Is SORNA Going to the Supreme Court?

SCOTUSblog's recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here. From the "reasons for granting the petition" section:

The Court should settle whether Congress meant SORNA to apply retroactively to persons whose underlying offense and interstate travel both predated enactment of the statute. The Seventh Circuit’s holding on this point conflicts with decisions of other courts of appeals (as the court below acknowledged) and of numerous district courts. And that holding is wrong: It departs from the plain statutory text; misstates the congressional purpose; and disregards the presumptions against retroactivity, and in favor of lenity and the avoidance of constitutional questions, that have been consistently applied by this Court. Review of the decision below accordingly is warranted.

Because the Seventh Circuit decided the question of statutory interpretation as it did, it was required to resolve the important constitutional question whether retroactive application of SORNA’s criminal penalties violates the Ex Post Fact Clause. Its decision on that question also warrants review. The district courts are deeply divided on the question--although the government has managed to suppress creation of a conflict in the courts of appeals by failing to appeal in those cases where it has been unsuccessful. Particularly in light of substantial flaws in the Seventh Circuit’s constitutional analysis, this Court’s guidance on the issue is essential.

While I do think that the USSC should chime in as to SORNA's constitutionality, I'm not sure the Justices will be interested in hearing these particular issues. The Ex Post Facto issue related to travel before the enactment of the AWA will disappear over time and only affects a small number of defendants. Still, the petition bears watching.

9th Circuit Rejects Challenge to SORNA

In U.S. v. George, the 9th Circuit rejected the constitutional challenges to a SORNA prosecution. You can download the opinion here. The Commerce Clause analysis by the court was particularly disappointing:

SORNA was enacted to keep track of sex offenders through interstate movement. Such offenders are required to “register, and keep registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, “[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.” United States v. Howell, 552 F.3d 709, 716 (8th Cir. 2009). “Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce.” Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at “regulating persons or things in interstate commerce and the use of the channels of interstate commerce.” Id. at 717 (quoting United States v. May, 535 F.3d 912, 921 (8th Cir. 2008)) (quotation marks omitted). Congress had the power under its broad commerce clause authority to enact the SORNA.

Other than a minor issue of whether George had pleaded guilty to (A) or (B), the above excerpt is the entirety of the court's reasoning on the Commerce Clause issue. It relies entirely on the 8th Circuit reasoning with no discussion of the counterarguments. Since I read the briefs in the case (which were quite good), the court really did a disservice to the defense in not even addressing the finer distinctions in the Commerce Clause analysis. It looks like a Circuit split might never develop in regards to SORNA. Certainly if the Court upholds the civil commitment portions of the AWA in Comstock, then no Commerce Clause challenge to SORNA will likely ever succeed.

Sentencing Law & Policy's coverage of the opinion is here.