Sex Crimes

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.

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. 

SCOTUS Stays out of Catholic Sex Abuse Disclosure Case (for now)

On Monday, the U.S. Supreme Court denied a request by the Roman Catholic Diocese of Bridgeport to delay the court-ordered release of thousands of legal documents from priest sex-abuse lawsuits. The New York Times has more. From the WSJ.com Law Blog:

In a one-line opinion, the court on Monday rejected a request by the Roman Catholic Diocese of Bridgeport to delay the release of thousands of legal documents from lawsuits filed against priests accused of child sex abuse.

The diocese still has another request before the court, asking the justices to hear arguments that release of the records would violate the First Amendment rights accorded to religious groups. But, writes the NYT, such a hearing appears unlikely after the court’s ruling on Monday.

A spokesman for the Bridgeport Diocese said in a statement: “We are disappointed that the U.S. Supreme Court decided not to extend the stay. For more than a decade, the Catholic Church in Bridgeport has addressed the issue of clergy sexual abuse compassionately and comprehensively. For now, however, the serious threat to the First Amendment rights of all churches and the rightful privacy of all litigants remain in jeopardy because of the decision of the Connecticut Supreme Court. This, indeed, is regrettable.”

The NYT story explains that the records were obtained by plaintiffs in 23 lawsuits filed against the diocese and seven of its priests in the 1990s. They were sealed in 2001 after the diocese reached settlements with the plaintiffs, former altar boys and youth group members who said they were molested by priests in the 1960s, ’70s and early ’80s.

In 2002, The NYT filed suit, seeking the release of the records. In June, the Connecticut Supreme Court upheld lower court rulings, ordering the documents released.

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

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.

Ohio Sex Battery Not A 'Crime of Violence'?

Professor Jonathan Adler over at the Volokh Conspiracy has a post discussing the Sixth Circuit's decision in United States v. Wynn, where a divided panel found that a defendant's guilty plea to “sexual battery” under Ohio law was a not “crime of violence” for career offender purposes. You may read the Sixth Circuit's decision here. From a post entitled Is “Sexual Battery” A “Crime of Violence”?:

The question would seem to answer itself. Isn't "sexual battery," almost by definition, a violent act? That was my initial reaction when I read the opening of United States v. Wynn, a decision handed down by the U.S. Court of Appeals for the Sixth Circuit. Yet as it turns out, the question is not so simple, at least not given the relevant statutes and case law, and it divided the Sixth Circuit panel.

Antonio Wynn pleaded guilty to possession of cocaine with intent to distribute. Wynn had previously been convicted of assaulting a peace officer and pleaded guilty to “sexual battery” under Ohio Rev. Code § 2907.03. The district court concluded both constituted “crimes of violence for purposes of the federal sentencing guidelines, resulting in a longer sentence, but on appeal two judges on the Sixth Circuit were not so sure.

The reason for the uncertainty was that the relevant Ohio statute defines “sexual battery” to include actions that do not necessarily involve a threat or use of force as an element of the offense. For this reason, Judge Moore (who wrote for the majority) and Judge Gibbons were not sure that Wynn’s guilty plea necessarily constituted a prior conviction of a “crime of violence” because the plea had not specified the subsection of the statute that covered his alleged offense. Given the expansiveness of the relevant Ohio statute, the fact of conviction and the statutory definition of the offense alone were not enough to establish what Wynn had been convicted of an action with the requisite level of “violent and aggressive” conduct under United States v. Begay. Further, the majority concluded, the district court could not rely upon the factual recitation of Wynn’s offense in the presentence investigation report – which indicated that Wynn’s conduct had been violent.

Judge Friedman, sitting by designation from the Federal Circuit, dissented, concluding it was proper for the district court to rely upon the factual recitation of Wynn’s prior offense. Wynn had failed to challenge any of the factual allegations contained in the presentence investigation report and, Judge Friedman concluded, the relevant facts “leave no doubt that the generic state crime to which he pleaded guilty was categorically a crime of violence.” Further, Judge Friedman argued, the district court could “take judicial notice of publicly available Ohio judicial records that show unequivocally that the state sexual battery offense of which Wynn was convicted was a ‘crime of violence.’”

Report: Fed. Prison Staff Sex Abuse Claims Doubled Since 2001

A recent Justice Department report found that prisoner allegations of sex abuse by prison staff has more than doubled in the last seven years. You may read the actual report here. From the Washington Post:

Prisoners don't command much respect. Those who steal, rape and murder make life miserable for the rest of us and should pay for their actions.

But when society puts them away, they must be treated decently, humanely and in accordance with the law.

So a report last week from the Justice Department's inspector general was particularly troubling because it detailed crimes by an unexpected group: federal employees who work in the prisons.

Inspector General Glenn A. Fine calls it "staff sexual abuse of federal inmates." The document paints a disgusting picture of federal employees who have disgraced themselves, shamed their professions and dishonored the federal service.

As my colleague Carrie Johnson reported Friday, the inspector general found that allegations of sexual abuse and misconduct had more than doubled from fiscal year 2001 through 2008.

Seventh Circuit Skeptical of Indiana Law Restricting Adult Businesses

The Seventh Circuit, via Chief Judge Easterbrook, has issued an interesting opinion in Annex Books v. City of Indianapolis, a challenge to an Indianapolis ordinance that restricts when "adult entertainment business" may operate. The Appellate Court ruled that the city needs some compelling purpose to curtail the adult business. You may read the opinion here. You may also listen to the oral argument before the three judge panel, held five years ago today, here. From the Indianapolis Star:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.
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Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.

Georgia Sex Offender Challenges Online Registration Requirement

Sex offender banishment seems to be catching up with the information age. A Georgia sex offender has brought a constitutional challenge in federal court against a new state law that forces sex offenders to register their passwords, screen names, and e-mail addresses with law enforcement officials. Last year, a federal judge in Utah struck down a similar requirement. Recently, that same judge vacated her decision after the Utah legislature amended the statute to address the judge's concerns. From the Atlanta Journal-Constitution:

A federal judge on Tuesday began weighing arguments for and against a new Georgia law that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses to law enforcement officials in the name of public safety.

Attorneys for convicted sex offender Terrence White urged U.S. District Judge Bill Duffey to block the law because it infringes on White's constitutional rights.

State attorneys countered that the 2009 law gives authorities a much-needed tool to make sure registered sex offenders don't strike again.

Duffey did not rule immediately, but he said the case centers on a "fundamental issue in our culture."

"Children do have to be protected, but that also has to be balanced with constitutional protections," he said. "And I never take those lightly."

The case hinges on a state statute that took effect in January, bringing Georgia in line with a 2006 federal law requiring authorities to track Internet addresses of sex offenders.

It also made Georgia one of the first states to take the extra step of forcing its 16,000 offenders to turn in their passwords as well.

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.