Court Reviews Adam Walsh Child Protection and Safety Act

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.

Comments

[Eric]

Very nice analysis. And, not having read the opinion yet, I agree with you that this opinion seems to give short shrift to Lopez and Morrison.

I could easily see Lopez and Morrison ending up as nothing more than footnotes in constitutional law, however.

The current makeup of the Court (as opposed to the Court that decided Lopez and Morrison) seems like it will lean more toward deferring to the political branches on issues related to how best to protect the country from criminals.

The intellectual focus that allowed the Court to strike down acts of Congress could easily shift to a more . . . pragmatic application of the law with this new Court.

[eAdvocate]

This is a bad decision, bad in that, federal courts do not yet have jurisdiction to prosecute offenders for "failure to register" (FTR) after they move from one state to another.

Congress mandated that the USAG SHALL issue guidelines and regulations to implment this Act (Adam Walsh Act). The fact is he has not done that, so no state has yet implmented the provisions under state law. Congress also mandated that the USAG notify offenders of the provisions of AWA. The USAG has not done that either.

I have outlined all that is required of the USAG in my commentary here (too much for this blog):
http://www.geocities.com/voicism/index-awa-violations.html

This court has simply ignored the fact that the USAG has not done what is required of him, which is notify those registered. i.e. Due Process.

In a veiled attempt at proving notification it claims Madera was notified when he was registered in New York. True, but that notifcation did not include any provision of the Adam Walsh Act which is why Congress wanted the USAG to do that.

Then the federal court goes on to convict Madera of a federal offense and with it federal penalties that far exceed what Madera would have gotten had he been prosecuted in State court. Ex Post Facto clause has got to apply under those penalty circumstances.

The USAG is not above the law, Congress told him what he must do, and he has not done that, hence Madera's case should be prosecuted under State law with State penalties as they were before AWA.

Lawyers simply have not reviewed the Adam Walsh Act enough and are not defending clients as they should be. Hopefully this case will be appealed and overturned.